Saturday, September 24, 2011

SIZE DOES MATTER: Annulment based on insignificant proportions

By Obiter07

There are two companion cases to be discussed, both dealing with annulment albeit with different outcomes. Considering the nature of the subject matter, one gets to wonder again how these cases reached the Supreme Court, to be part of the public record for all to see.

Chi Ming Tsoi vs. CA

In Chi Ming Tsoi vs. CA, et al.(G.R. No. 119190, January 16, 1997), “a distraught wife” filed for annulment of marriage on the ground of psychological incapacity “against her uncaring husband.” The Regional Trial Court and the Court of Appeals ruled in her favor.
The parties were married in the Manila Cathedral. From the results of the case, the venue of a marriage, no matter how grand, does not necessarily augur well for a long union. After the reception, they proceeded to the house of the husband’s mother. She alleged that during their first night, “the defendant just went to bed, slept on one side thereof, then turned his back and went to sleep. There was no sexual intercourse between them during the first night. The same thing happened on the second, third and fourth nights.”

Even during their honeymoon in Baguio, “there was no sexual intercourse between them, since the defendant avoided her by taking a long walk during siesta time or by just sleeping on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. [S]he claims, that she did not: even see her husband's private parts nor did he see hers.”

This even led to them to get medical examinations from a urologist. She was found to “healthy, normal and still a virgin, while that of her husband's examination was kept confidential up to this time. While no medicine was prescribed for her, the doctor prescribed medications for her husband which was also kept confidential. No treatment was given to her. For her husband, he was asked by the doctor to return but he never did.”

In her suit, the wife claims “that the defendant is impotent, a closet homosexual as he did not show his penis. She said, that she had observed the defendant using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to her, the defendant married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man.”

Defendant pointed to his wife as the one psychologically incapacitated. But he opposed the annulment since he still loves her, that he is capable and that they could still reconcile. Any defect can still be cured. He did admit that there has been no sexual contact between them but this was because of her refusal. He alleges that the case was filed because “she is afraid that she will be forced to return the pieces of jewelry of his mother and because of her fear of consummation. This certainly is a novel defense which was presented by the defendant.

However, a physical examination to determine whether he is impotent revealed the following: (i) “from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter and (ii) “defendant had only a soft erection which is why his penis is not in its full length xxx, still is capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman.”

Defendant went to the Supreme Court. He contended that his spouse had the “burden of proving the allegations in her complaint.” And that since there is no independent evidence of the “alleged non-coitus between the parties,” there was no other basis other than his admission for the court’s conclusions. The Court held that the judgment made was not merely based on the pleadings. When the plaintiff testified under oath and was subjected to cross-examination, she presented evidence in the form of testimony. It was now incumbent on the defendant to present his side. He admitted that they did not have intercourse since their marriage until their separation.

In affirming the decision of the Court of Appeals, the court quoted with favor the former’s findings, to wit:

“The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. The issue of whether or not the appellant is psychologically incapacitated to discharge a basic marital obligation was resolved upon a review of both the documentary and testimonial evidence on record. Appellant admitted that he did not have sexual relations with his wife after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995).

Defendant further argued that “alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both”  and that there may be other reasons such as “i.e., physical disorders, such as aches, pains or other discomforts” on why the marriage was not consummated. The trial court did not make a finding on who refused contact.  But the fact remains that here has been no coitus.  And since an annulment can be filed by either party, even the one “psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial.”

There is nothing on record to show whether defendant “tried to find out or discover what the problem with his wife could be.” All he showed was supposed medical proof there is “no evidence of his impotency and he is capable of erection.”  His claim that the “reason is not psychological but perhaps physical disorder on the part of private respondent” was his to prove. As held by the Court:

“If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity.”

One of the ““essential marital obligations under the Family Code is "[t]o procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage." Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity.”   It is interesting to note how the Court cited with approval a finding of the trial court that a husband should assert his right to consummate:

“An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him does not inspire belief. Since he was not physically impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of sympathy for her feelings, he deserves to be doubted for not having asserted his right even though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife who was suffering from incapacity, the fact that defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status.

We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act, which is not psychological incapacity, and which can be achieved "through proper motivation." After almost ten months of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom he professes to love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the contemplation of the Family Code.“

The Court proceeded to state that “l]ove is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations.”

Jimenez vs. Canizares

From this case, we proceed to the matter of Jimenez vs. Canizares (G.R. No. L-12790, August 31, 1960)[1], where a husband filed for annulment upon the ground that his wife’s “vagina was too small to allow the penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after they had been married.” He did not wait long in contrast to the preceding case. Women may indeed be more patient than men.

The wife was summoned and even required to undergo a physical examination.  She was warned that failure to do so “would be deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would be rendered.”

After hearing and in her absence, the Court “entered a decree annulling the marriage between the plaintiff and the defendant.”  This was questioned by the City Attorney citing, among others, it was “satisfactorily established as required by law; that she had not been physically examined because she had refused to be examined; that instead of annulling the marriage the Court should have punished her for contempt of court and compelled her to undergo a physical examination and submit a medical certificate; xxx.”

The Court found that the threshold issue was “whether the marriage in question may be annulled on the strength only of the lone testimony of the husband who claimed and testified that his wife was and is impotent,” when the latter had refused to file an answer, did not attend the hearing and refused a medical examination.

The Court set aside the judgment and remanded the case for further proceedings, finding that the lone testimony of the husband does not suffice to annul their union.  It stated that marriage “in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed by law, not by will of the parties. The law specifically enumerates the legal grounds that must be proved to exist by indubitable evidence, to annul a marriage. xxx”

While it held that the wife may be indifferent, her coy nature may have prevented her participation in the proceedings. This was in 1960.  In the previous case decided in 1997, we see the woman taking the initiative so some of this bashfulness must have been lost through the years.

“Although her refusal to be examined or failure to appear in court show indifference on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical examination unless compelled to by competent authority. This the Court may do without doing violence to and infringing in this case is not self-incrimination. She is not charged with any offense. She is not being compelled to be a witness against herself. "Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency.“

In both instances, we see annulments sought grounded on certain incapabilities - one based on unexplainable indifference and the other on dimensional insufficiency. One was granted despite a husband’s medical proof of potency, notwithstanding some softening in his stand (pun intended) the other was not although one can only speculate on how the husband is supposed to prove his case.

Relationships are not supposed to be built by litigation. If the parties expended as much effort on making the marriage work as they did in filing cases, perhaps there could have been different results. In the end, while the law can step in where all else fails, it is love, not size, not money, not riches and not status that truly does matter for any marriage to work.

[1] Please note that the law has changed since then. The grounds for annulment under the Civil Code were as follows:
ARTICLE 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1)     That the party in whose behalf it is sought to have the marriage annulled was between the ages of sixteen and twenty years, if male, or between the ages of fourteen and eighteen years, if female, and the marriage was solemnized without the consent of the parent, guardian or person having authority over the party, unless after attaining the ages of twenty or eighteen years, as the case may be, such party freely cohabited with the other and both lived together as husband and wife;
(2)     In a subsequent marriage under article 83, number 2, that the former husband or wife believed to be dead was in fact living and the marriage with such former husband or wife was then in force;
(3)     That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife;
(4)     That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be;
(5)     That the consent of either party was obtained by force or intimidation, unless the violence or threat having disappeared, such party afterwards freely cohabited with the other as her husband or his wife, as the case may be;
(6)     That either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable. (30a)

Under the Family Code, the grounds are as follows:
ARTICLE 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1)     That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2)     That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
(3)     That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4)     That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5)     That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(6)   That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)


Thursday, September 15, 2011

ENABLING THE DISABLED (The Magna Carta for Persons with Disabilities)

The aim of this piece is to inform Persons with Disabilities (PWD) and the rest of the public, especially those offering goods and services to PWDs of the privileges and benefits granted the latter.

In this connection, the following definitions under RA 7277 (now called the “Magna Carta for Persons with Disability”)[1] are best laid down first:

a)     Disabled Persons (now PWDs) are those suffering from restriction of different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being;

b)     Impairment is any loss, diminution or aberration of psychological, physiological, or anatomical structure of function;

c)     Disability shall mean (1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment;

d)     Handicap refers to a disadvantage for a given individual resulting from an impairment or a disability, that limits or prevents the functions or activity, that is considered normal given the age and sex of the individual. (Section 4)

Because the more specific discounts which were added by RA 9442 amending RA 7277 seem helpful on a daily basis, we’ll tackle them ahead.


Special Discounts

Section 32 of RA 9442[2] lists the discounts available to PWDs, their limits, the requirements to avail them and the tax deductions allowed the relevant establishments:

a)      At least 20% discount from all establishments relative to the utilization of all services in hotels and similar lodging establishments; restaurants and recreation centers for the exclusive use or enjoyment of persons with disability;
b)      A minimum 20% discount on admission fees charged by theaters, cinema houses, concert halls, circuses, carnivals and other similar places of culture, leisure and amusement for the exclusive use of enjoyment of persons with disability;
c)      At least 20% discount for the purchase of medicines in all drugstores for the exclusive use or enjoyment of persons with disability;
d)      At least 20% discount on medical and dental services including diagnostic and laboratory fees such as, but not limited to, x-rays, computerized tomography scans and blood tests, in all government facilities, subject to guidelines to be issued by the Department of Health (DOH), in coordination with the Philippine Health Insurance Corporation (PHILHEALTH);
e)      At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees, and professional fees of attending doctors in all private hospitals and medical facilities, in accordance with the rules and regulations to be issued by the DOH, in coordination with the PHILHEALTH;
f)       At least 20% discount on fare for domestic air and sea travel for the exclusive use or enjoyment of persons with disability;
g)      At least 20% discount in public railways, skyways and bus fare for the exclusive use and enjoyment of person with disability;
h)      Educational assistance to persons with disability, for them to pursue primary, secondary, tertiary, post tertiary, as well as vocational or technical education, in both public and private schools, through the provision of scholarships, grants, financial aids, subsidies and other incentives to qualified persons with disability, including support for books, learning material, and uniform allowance to the extent feasible: Provided, That persons with disability shall meet minimum admission requirements;
i)        To the extent practicable and feasible, the continuance of the same benefits and privileges given by the Government Service Insurance System (GSIS), Social Security System (SSS), and PAG-IBIG, as the case may be, as are enjoyed by those in actual service;
j)        To the extent possible, the government may grant special discounts in special programs for persons with disability on purchase of basic commodities, subject to guidelines to be issued for the purpose by the Department of Trade and Industry (DTI) and the Department of Agricultural (DA) (see Joint DTI-DA Administrative Order No. 02 Series Of 2008 discussed below); and
k)      Provision of express lanes for persons with disability in all commercial and government establishments; in the absence thereof, priority shall be given to them.

The privileges may not be claimed a) if the PWD claims a higher discount as may be granted by the commercial establishment and/or under other existing laws or b) in combination with other discount program/s.  It really does seem too much to get an additional discount for that already-cheap value meal.

The establishments may claim the discounts granted in Sec. 32 a), b), c), f) and (g) as tax deductions based on the net cost of the goods sold or services rendered but the total amount of the claimed tax deduction net of value-added tax if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code (NIRC), as amended.

5% off on Basic Necessities and Prime Commodities

In relation to Section 32 item j) above, Joint DTI-DA Administrative Order No. 02 Series Of 2008[3] was issued to grant a special discount of 5% of the regular retail price of Basic Necessities and Prime Commodities provided that (1) the total amount of said purchase does not exceed Php1,300.00 per calendar week without carry over of the unused amount and (2) said amount is spent on relevant items for the PWDs personal and exclusive consumption and/or enjoyment within the calendar week. (Section 3)

AO No. 2 provides the following relevant definitions under Section 2:

a)      “Basic necessities” refers to rice, corn, bread, fresh, dried and canned fish and other marine products, fresh pork, beef and poultry meat, fresh eggs, fresh and processed milk, infant formulas, fresh vegetables, root crops, coffee, sugar, cooking oil, salt, laundry soap, detergents, firewood, charcoal, candles and other commodities as maybe classified by the DTI and DA.

b)      “Prime Commodities” refers to fresh fruits, dried, processed and canned pork, beef and poultry, meat, dairy products not falling under basic necessities, noodles, onions, garlic, diapers, herbicides, poultry, swine and cattle feeds, veterinary products for poultry, swine and cattle feeds, veterinary products for poultry, swine and cattle, paper, school supplies, nipa shingle, plyboard, construction nails, batteries, electrical supplies, light bulbs, steel wire and other commodities that may be classified by the DTI and the DA.

c)      “Retailer” means any natural or judicial person engaged in the business of selling consumer products directly to consumers, which shall include among others, supermarkets, grocery stores, convenience and mini-convenience stores and shops, excluding sari-sari stores with a capitalization of less than P100,000, public and private wet markets, “talipapa” and cooperative stores.

The privilege granted under AO No. 2 shall not be claimed if the PWD claims a higher discount as may be granted by the retail establishment and/or under other existing laws or in combination with other discount programs such as those extended to senior citizens. (Section 7)  Meaning, no double discount.

RA 9442, AO No. 2 requires a PWD to “present his/her identification card issued by the National Council on Disability Affairs (NCDA) or by the authorized office of Local Government Units (LGUs) where he/she resides.  The procedure for the issuance of identification cards shall be in accordance with NCDA Administrative Order No. 001, Series of 2008, issued 23 April 2008[4], and other relevant issuances. (Section 4)

A purchase booklet shall be presented to the retailer every time a purchase of basic necessities and prime commodities is made.  The purchase booklet shall contain the name of the PWD, the list of Basic Necessities and Prime Commodities, the name of the retail establishment and its address, date of purchase and the amount spent for the purchase thereof. (Section 4)


Section 33 of RA 9442 adds the following incentives to those caring for and living with a PWD:

a)      PWDs shall be treated as dependents under the Section 35 (A) of the National Internal Revenue Code, as amended and as such, individual taxpayers caring for them shall be accorded the privileges granted by the code insofar as having dependents under the same Section are concerned; and
b)      Individuals or nongovernmental institutions establishing homes, residential communities or retirement villages solely to suit the needs and requirements of PWDs shall be accorded the following:

(i)     Realty tax holiday for the first 5 years of operation; and
(ii)   Priority in the building and/or maintenance of provincial or municipal roads leading to the aforesaid home, residential community or retirement village.

RA 9442 further adds prohibitions against ridicule and vilification against PWDs.  There are a lot of proviso

Prohibitions on Verbal, Non-verbal Ridicule and Vilification Against PWDs

As a special shout-out to our tv hosts, below are the relevant provisions against public ridicule and vilification -

Section 39 defines public ridicule as an act of making fun or contemptuous imitating or making mockery of PWDS whether in writing, or in words, or in action due to their impairment/s.   Under Section 40, such acts of ridicule against PWDs in any time and place which could intimidate or result in loss of self-esteem of the latter are prohibited.

Section 41 defines vilification as: a) the utterance of slanderous and abusive statements against a PWD; and/or b) an activity in public which incites hatred towards, serious contempt for, or severe ridicule of PWDs.  Section 42 prohibits anyone from vilifying any PWD which could result into loss of self-esteem of the latter.

Now that we’ve more or less discussed 9442, we go to RA 7277 which is wider in scope.

Education, Health, Social Services and Political and Civil Rights

We find the provisions on education, health, social services and political and civil rights a bit generalized and not specific enough for discussion at this point.  Maybe when we come across actual cases like the one discussed at the end of this post …

So we’re focusing on the provisions re employment.


No PWDs shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. 5% of all casual, emergency and contractual positions in the Department of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for PWDs. (Section 5) It might have been nice if the law was also amended to increase the scope of the 5% reservation to all government offices.

If suitable employment for PWDs cannot be found through open employment, the government shall endeavor to provide it by means of sheltered employment.[5]  In the placement of PWDs in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. (Section 6) 

Subject to the provision of the Labor Code as amended, PWDs shall be eligible as apprentices or learners; Provided, That their handicap is not much as to effectively impede the performance of job operations in the particular occupation for which they are hired; Provided, further, That after the lapse of the period of apprenticeship if found satisfactory in the job performance, they shall be eligible for employment. (Section 7) 

Incentives for the Employer

Private entities that employ PWDs who meet the required skills or qualifications, either as regular employee, apprentice or learner, shall be entitled to an additional deduction, from their gross income, equivalent to 25% of the total amount paid as salaries and wages to PWDs provided (1) that such entities must present proof as certified by the Department of Labor and Employment (DOLE) that PWDs are under their employ and (2) that the disabled employee is accredited with the DOLE and the Department of Health as to his disability, skills and qualifications. (Section 8)

Private entities that improved or modify their physical facilities in order to provide reasonable accommodation for PWDs shall also be entitled to an additional deduction from their net taxable income, equivalent to 50% of the direct costs of the improvements or modifications. This Section, however, does not apply to improvements or modifications of facilities required under Batas Pambansa Bilang 344.[6] (Section 8)

The Department of Social Welfare and Development (DSWD) shall design and implement training programs that will provide PWDs with vocational skills to enable them to engage in livelihood activities or obtain gainful employment. The DOLE shall likewise design and conduct training programs geared towards providing PWDs with skills for livelihood. (Section 9)

The DSWD shall implement measures providing and evaluating vocational guidance and counseling to enable PWDs to secure, retain and advance in employment. It shall ensure the availability and training counselors and other suitability qualified staff responsible for the vocational guidance and counseling of PWDs.  (Section 10)

Discrimination on Employment

Under Section 32, the following constitute acts of discrimination:

a)      Limiting, segregating or classifying a PWD job applicant in such a manner that adversely affects his work opportunities;
b)      Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a PWD unless such standards, tests or other selection criteria are shown to be job-related for the position on question and are consistent with business necessity;
c)      Utilizing standards, criteria, or methods of administration that:
(i)     have the effect of discrimination on the basis of disability; or
(ii)  perpetuate the discrimination of others who are subject to common administrative control;
d)     Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified PWD employee, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled;
e)      Favoring a non-disabled employee over a qualified PWD employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter’s disability;
f)       Re-assigning or transferring a PWD employee to a job or position he cannot perform by reason of his disability;
g)      Dismissing or terminating the services of a PWD employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entities, provided that the employer first sought to provide reasonable accommodations for PWDs;
h)      Failing to select or administer in the effective manner employment tests which accurately reflect the skills, aptitude or other factor of the PWD applicant or employee that such test purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and
i)        Excluding PWDs from membership in labor unions or similar organization.

Section 33 adds that, upon an offer of employment, a PWD applicant may be subjected to medical examination, on the following occasions:

a)      all entering employees are subjected to such an examination regardless of disability;
b)      information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, provided that:

(i)     supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations;
(ii)   first aid and safety personnel my be informed, when appropriate, if the disability might require emergency treatment;
(iii) government officials investigating compliance with RA 7277 shall be provided relevant information on request; and
the results of such examination are used only accordance with RA 7277.

Other Acts of Discrimination

Discrimination on Transportation

Franchises or operators and personnel of sea, land, and air transportation facilities are prohibited from charging higher fare or to refusing to convey a passenger, his orthopedic devices, personal effects, and merchandise by reason of his disability. (Section 34)

Discrimination on the Use of Public Accommodations and Services (Section 36)

a)      No PWDs shall be discriminated on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.  The following constitute acts of discrimination:

1)      denying a PWD, directly through contractual, licensing, or other arrangement, the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity by reason of his disability;
2)      affording a PWD, on the basis of his disability, directly or through contractual, licensing, or other arrangement, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other able-bodied persons; and
3)      providing a PWD, directly or through contractual, licensing, or other arrangement, with a good, service, facility, advantages, privilege, or accommodation that is different or separate from that provided to other able-bodied persons unless such action is necessary to provide the PWD with a good, service, facility, advantage, privilege or accommodation, or other opportunity that is as effective as that provided to others. (Section 36)

b)      Goods, services, facilities, advantages, and accommodations shall be afforded to a PWD in the most integrated setting appropriate to the needs of the individual.

c)      Notwithstanding the existence of separate or different programs or activities provided in accordance with Section 36, a PWD shall not be denied the opportunity to participate in such programs or activities that are not separate or different. In other words, if they do not want special treatment, they may be allowed to do as they please so long as no one get hurt.

d)      It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, advantages, privileges, accommodations or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

e)      The following are also considered as discriminatory:

1)      the imposition or application of eligibility criteria that screen out or tend to screen out a PWD or any class or individuals with disabilities from fully and equally enjoying and goods, services, facilities, privileges, advantages, accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, or accommodations being offered;
2)      a failure to make reasonable modifications in policies, practices, or procedures, when such modification are necessary to afford such goods, services, facilities, privileges, advantages or accommodations to PWDs, unless the entity can demonstrate that making such modification would fundamentally alter the nature of the goods, facilities, services, privileges, advantages, or accommodations;
3)      Failure to take steps as may be necessary to ensure that no PWD is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege or would result in undue burden;
4)      a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, where such removal is readily achievable; and
5)      where an entity can demonstrate that the removal of a barrier under clause (4) above is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable.

Use of Government Recreational or Sports Centers

Recreational or sports centers owned or operated by the government shall be used, free of charge, by marginalized PWDs persons during their social, sports or recreation activities. (Section 36)

Penalties (Section 46)

a)      Any person who violates any provision of this Act shall suffer the following penalties:

1)      For the first violation, a fine of not less than P50,000.00 but not exceeding P100,000.00 or imprisonment of not less than 6 months but not more than 2 years, or both at the discretion of the court; and
2)      For any subsequent violation, a fine of not less than P100,000.00 but not exceeding P200,000.00 or imprisonment for not less than 2 years but not more than 6 years, or both at the discretion of the court.

b)      Any person who abuses the privileges granted herein shall be punished with imprisonment of not less than 6 months or a fine of not less than P5,000.00, but not more than P50,000.00, or both, at the discretion of the court.
c)      If the violator is a corporation, organization or any similar entity, the officials thereof directly involved shall be liable therefore.
d)      If the violator is an alien or a foreigner, he shall be deported immediately after service of sentence without further deportation proceedings.

Upon filing of an appropriate complaint, and after due notice and hearing, the proper authorities may also cause the cancellation or revocation of the business permit, permit to operate, franchise and other similar privileges granted to any business entity that fails to abide by the provisions of the law.

Actual Case

This year, an actual case was decided by the Department of Transportation and Communications (“DOTC”) relating to the Magna Carta for Disabled Persons that was passed in 1992.  While belated, let us hope that it is being honored more than it is being breached.

Based on press accounts,[7] Mr. Antonio Damasco, who cannot stand nor walk without crutches, was told that he could not use the designated seats for the handicapped since these were occupied “by sleeping male passengers.” He was made to occupy a seat at the back where he was “forced to sit uncomfortably because he could not unlock the orthopedic brace clamped around his left leg.” The DOTC in the Cordillera ruled that this should have drawn the attention of conductor or the driver.  Both employees and Partas Transportation Co. Inc. were penalized for violating Republic Act No. 7277 (Magna Carta for Disabled Persons). A fine of P50,000 was imposed.

Mr. Damasco recounted thus, “I have been approached by certain sectors to settle this matter monetarily … But I told them I had enough money to buy my own [food]. I just want the rules [on the rights of the disabled] to be followed,” Damasco said. “No one follows this law (RA 7277). That had always irritated me. I was so ashamed sitting at the back row because I kept fidgeting each time my outstretched leg shifted from beneath me. I kept bumping into a girl seated beside me,” he said.

He complained that the “disability symbol was not displayed when he boarded the bus, and that the driver and he driver and the conductor refused to wake up the passengers occupying the seats that should have been reserved for those with disabilities.

When rights granted by law for the disabled are violated, they have to both literally and figuratively stand up for them, as no one else will.

[1]  “An Act Providing For The Rehabilitation, Self-Development And Self-Reliance Of Disabled Person And Their Integration Into The Mainstream Of Society And For Other Purposes”, March 24, 1992

[2]  “An Act Amending Republic Act No. 7277, Otherwise Known As The “Magna Carta For Disabled Persons, And For Other Purposes”, April 30, 2007.

[3]  July 27, 2009.
[4]  NCDA Administrative Order No. 001, Series of 2008,
  1. Identification Cards shall be issued to any bonafide PWD with permanent disabilities due to any one or more of the following conditions: psychosocial, chronic illness, learning, mental, visual, orthopedic, speech and hearing conditions. This includes persons suffering from disabling diseases resulting to the person’s limitations to do day to day activities as normally as possible such as but not limited to those undergoing dialysis, heart disorders, severe cancer cases and such other similar cases resulting to temporary or permanent disability.
  2. The Identification Card shall be the basis for the provision of certain special privileges and discounts to bonafide PWDs in the Philippines in accordance with RA 9442.
  3. PWD-IDCs shall served as proof for availment of discount to ensure that PWD shall fully enjoy the benefits and privileges as provided for in RA 9442.
C. PWD-RFs or application forms can be obtained from any of the following registration centers or means:
  1. Office of the Mayor
  2. Office of the Barangay Captain
  3. NCDA or its regional counterpart
  4. DSWD offices
  5. Participating organizations with Memorandum of Agreements with the DOH
  6. DOH Online Registration –
D. Issuance of the appropriate document to confirm the medical condition of the applicant is as follows:
Issuing Entity
Apparent Disability
Medical Certificate
Licensed Private or Government Physician

School Assessment
Licensed Teacher duly signed by the School Principal

Certificate of Disability
* Head of the Business Establishment
* Head of Non-Government Organization
Non-Apparent Disability
Medical Certificate
Licensed Private or Government Physician

E. PWD Registration Forms and ID Cards shall be issued and signed by the City or Municipal Mayor, or Barangay Captain.


Any bonafide person with permanent disability can apply for the issuance of the PWD-IDC. His/her caregiver can assist in the application process. Procedures for the issuance of the ID Cards are as follows:

A. Completion of the Requirements. Complete and/or make available the following requirements:

  1. Two “1×1” recent ID pictures with the names, and signatures or thumb marks at the back of the picture.
  2. One (1) Valid ID
  3. Document to confirm the medical or disability condition (See Section IV, D for the required document).
  1. The PIC issued to the PWD shall be valid for three (3) years.
  2. The initial PIC is free of charge.
  3. Renewal due to expiration, loss or damage shall be charged a minimal fee for the new PIC.


The PIC shall serve as the Standard National Identification Card for PWDs, and shall be prescribed as proof of availment of the 20% discount and other benefits to persons with disabilities as provided in RA 9442.

[5]  Sheltered Employment refers to the provision of productive work for PWDs through workshop providing special facilities, income producing projects or homework schemes with a view to given them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry.  (Chapter I, Section 2, (i), RA 7277).

[6]  Section 1. In order to promote the realization of the rights of disabled persons to participate fully in the social life and the development of the societies in which they live and the enjoyment of the opportunities available to other citizens, no license or permit for the construction, repair or renovation of public and private buildings for public use, educational institutions, airports, sports and recreation centers and complexes, shopping centers or establishments, public parking places, workplaces, public utilities, shall be granted or issued unless the owner or operator thereof shall install and incorporate in such building, establishment, institution or public utility, such architectural facilities or structural features as shall reasonably enhance the mobility of disabled persons such as sidewalks, ramps, railings and the like. If feasible, all such existing buildings, institutions, establishments, or public utilities may be renovated or altered to enable the disabled persons to have access to them: Provided, however, That buildings, institutions, establishments, or public utilities to be constructed or established or which licenses or permits had already been issued may comply with the requirements of this law: Provided, further, That in case of government buildings, streets and highways, the Ministry of Public Works and Highways shall see to it that the same shall be provided with architectural facilities or structural features for disabled persons.

In the case of the parking place of any of the above institutions, buildings, or establishments, or public utilities, the owner or operator shall reserve sufficient and suitable space for the use of disabled persons.

Sec. 2. In case of public conveyance, devices such as the prominent awareness of the rights of the disabled and foster understanding of their special needs. Special bus stops shall be designed for disabled persons. Discriminating against disabled persons in the carriage or transportation of passengers is hereby declared unlawful.   (Batas Pambansa Blg. 344, “An Act To Enhance The Mobility Of Disabled Persons By Requiring Certain Buildings, Institutions, Establishments, And Public Utilities To Install Facilities And Other Devices, February 25, 1983)

[7] Chavit bus firm draws fine for disregard of disabled, By Vincent Cabreza
Inquirer Northern Luzon 9:03 pm | Tuesday, May 17th, 2011