The Legally Inclined Blog

PESTAÑO VS. THE PHILIPPINES (The case before the UN Human Rights Committee against the Philippine Government for violation of the International Covenant on Civil and Political Rights)

2012-01-16T15:32:00.002+08:00

by Siesta-friendly

We received with joy last week’s news that the Office of the Ombudsman finally filed murder charges against 10 Navy officers in connection with the killing of Navy Ensign Phillip Pestaño in 1995.

In January 11, 2012, the new Ombudsman (former Supreme Court justice) Conchita Carpio-Morales filed “murder charges against 10 officials and officers of the Philippine Navy in connection with the death of [Phillip] Pestaño. Morales [reversed] the earlier dismissal of [her predecessor] saying there is sufficient evidence to file charges against Captain Ricardo Ordoñez, Cdr. Reynaldo Lopez, HM2 Welmenio Aquino, LCdr. Luidegar Casis, LCdr. Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito Colico, LCdr. Ruben Roque, Petty Officer 1st Class Carlito Amoroso, and Petty Officer 2nd Class Mil Leonor Igcasan.”[1]

In honor of Phillip Pestaño’s courage and his parents’ determination, we revisit the findings by the UN Human Rights Committee (UNHRC) in 2010 upon a complaint filed in April 24, 2007 by Phillip’s parents, Spouses Felipe and Evelyn Pestaño, against the Philippine government, in relation to their Phillip’s alleged murder on September 27, 1995. The complaint filed by Spouses Pestaño was for “violation by the Philippines of their son’s rights under article 6[2], article 2, paragraph 3[3], article 9, paragraph 1[4], and article 17, paragraph 1[5] of the International Covenant on Civil and Political Rights [ICCPR].”

The facts as presented by Spouses Pestaño before the UNHRC[6]

Phillip Pestaño was an Officer of the Philippine Navy serving as cargo officer of the ship “BRP Bacolod City” during its Mindanao voyage in September 1995. On or about 25 September 1995, the ship’s Commander permitted the loading of more than 14,000 board feet of logs onto the BRP Bacolod City, without proper papers or authorization. Phillip vehemently objected to the loading of such unauthorized cargoes.

On 26 September 1995, the Phillip’s parents received an anonymous phone call, warning them that their son’s life was in danger. On the same day, they collected their son from the Navy Station at Sangley Point, Cavite City, about 100 kilometers from Manila, and took him to their house in Loyola Heights, Quezon City. That night, Phillip disclosed to his father that the BRP Bacolod City ship was “dirty”, and that the illegal cargo included 20 sacks of shabu (formed from Methamphetamine), worth approximately 1 billion pesos in the black market. The father tried to dissuade his son from pursuing the case, as he was concerned that any action taken by his son may jeopardize his own business, as the Philippine Navy’s biggest ship repair contractor. But Phillip was determined to take the matter forward.

On 27 September 1995, at about 4:00 am, Phillip left the family home and proceeded to board the BRP Bacolod City. At about 11:00 am on the same day, his parents received a call from the Philippine Navy, asking them to proceed to the Navy Headquarters in Manila, because their son Phillip “had an accident”.

When his parents reached the Navy Headquarters, they were prevented from entering their son’s suite, where he lay dead. Instead, they were immediately asked to sign an authorization for an autopsy to be conducted on their son’s body, to which they consented after having viewed their son’s body. The Navy thereafter exhibited an alleged suicide weapon and an alleged suicide note, in support of their position that Phillip had committed suicide.

Significantly, on 30 September 1995, Phillip was buried in the National Cemetery for military personnel and given full military honours, despite a Navy policy stating that suicide victims should not benefit from such treatment.

After conducting their own investigations, the Criminal Investigation Division of the Philippine National Police and the National Bureau of Investigation of the Department of Justice corroborated the Navy’s position, concluding that Phillip had committed suicide.

Also notable is the fact that in the course of the same month, after conducting its own inquiry, and despite the official Navy and police conclusions, Phillip’s insurance company paid the full amount of his coverage to his beneficiaries for his death. Apparently, the insurance company believed Phillip did not commit suicide.

In October 1995, the radio operator of the BRP Bacolod City during its Mindanao voyage, and close friend of Phillip, drowned in high seas under highly suspicious circumstances during an alleged mission where all his companions survived. The victim’s body was never found.

In November 1995, another member of the Navy, who was perceived as Phillip’s ally, and who was also aboard the BRP Bacolod City in September 1995, mysteriously disappeared after being ordered to report to the Navy Headquarters in Manila. This person is still missing and is believed to be dead.

On 15 November 1995, two Senators filed a Senate Resolution, directing the appropriate Senate Committees to conduct an inquiry into the circumstances surrounding Phillip’s death.

In December 1995, the State party’s Navy Flag Officer in Command, a Vice-Admiral, invited Phillip’s parents to dinner, and requested that they refrain from pursuing their son’s case against the Navy. Two weeks later, the Navy Flag Officer in Command sought to see Spouses Pestaño again, and presented Mr. Pestaño with his company’s contract with the Navy, worth a hundred-million pesos, together with an affidavit of waiver and desistance to pursue his suit against the Navy. The spouses decided that they would not abandon their son’s claim. One week after this information was relayed to the Navy Flag Officer in Command, the four Navy ships being repaired by Mr. Pestaño’s company all mysteriously sank, and his company’s offices in the Navy Station in Sangley Point were ransacked and looted.

It is also reported that Mr. Pestaño’s nephew, the company’s property custodian, was shot dead during the same period.

On 2 January 1996, Spouses Pestaño received a leaked copy of an intelligence report of the Armed Forces, which stated that the BRP Bacolod City carried 1 billion pesos worth of shabu in 20 sacks of rice during its September 1995 trip. The report also indicated that this shipment had been escorted by a Security Officer of the Navy Flag Officer in Command, and that upon discovering the illegal cargo, Phillip had confronted his superior, and was killed afterwards, to prevent him from revealing the criminal activities taking place on board the ship. This confidential report also identified the chief security officer of the Navy Flag Officer in Command as the most likely perpetrator of the crime.

In January 1996, another member of the Philippine Navy mysteriously died in a military hospital, after a strange and quick deterioration of his condition. This person was suspected of involvement in the “shabu operation” in the BRP Bacolod City, as well as in the death of Phillip, and had engaged in discreet talks with Spouses Pestaño before their’s son’s death. He was believed to be ready to reveal important information before he died. The death of this member of the Navy brings to four the number of persons killed in connection with the September 1995 voyage of the BRP Bacolod City. The four killings remain uninvestigated, and unaccounted for.

Spouses Pestaño filed complaints against the Commanding Officer and certain crew members of the BRP Bacolod City: (1) in September 1995 with the Philippine Navy; (2) in September 1995 with the Philippine National Police and the National Bureau of Investigation of the Department of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in January 1998 with the Philippine Senate (Committees on Justice-Human Rights and Defense-National Security); (4) in March 2000 with Ombudsman Aniano Desierto; (5) and in October 2005 with a new Ombudsman (Simeon Marcelo), who was replaced thereafter. No action was taken on the case by the new Ombudsman, Merceditas Gutierrez, since she took office in December 2005.

After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December 2005, the Ombudsman found merit in the spouses’ petition, reopened the case, and requested from the Commanding Officer of the BRP Bacolod City in September 1995, and from eight senior and junior officers and enlisted personnel to submit counter-affidavits as respondents, within ten days. However, only one week after reopening the spouses’ case, the Ombudsman stepped down, and was replaced. Since then, the case was left uninvestigated in the Office of the Ombudsman for military affairs.

On 25 January 1998, after eight Committee hearings, a visual inspection of Phillip’s stateroom in the ship, and relying, inter alia, on expert evidence and witness testimonies, two Senate Committees issued a Joint report on the Pestaño case, which contained the following findings: (i) Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in one place in the vessel different from the one where his body was found; (iii) after his death, his body was moved and laid on the bed where it was found; (iv) he must have been shot on board the BRP Bacolod City before the vessel reached the Navy Headquarters on 27 September 1995; (v) there was a deliberate attempt to make it appear that Phillip killed himself inside his stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not have accomplished it by himself. The Senate Committees also recommended, inter alia, that an independent investigation be conducted on the circumstances surrounding Phillip’s murder, so as to bring the perpetrators to justice, and identify the other individuals who participated in the deliberate attempt to portray a suicide.

On 28 March 2000, the Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed the case without prejudice, concluding in its evaluation report that “the conduct of further investigation in order to find out the identity of the perpetrator and his accomplices, if any, will only be a waste of time, considering that the physical evidence has already been tampered with, not to mention the lapse of time”.

UNHRC’s consideration of the merits of the case

Let us tell you now how the UNHRC passed upon the merits of the case.

Violation of Article 6 of the ICCPR

As regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated – referring to the ICCPR as the Covenant - that it:

“recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also by private persons or entities. The Committee also refers to its jurisprudence, according to which both a criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6. A violation of the Covenant may therefore arise as a result of a State party’s failure to take appropriate measures to punish, investigate or redress such a violation.”

“7.2 Despite the initial findings of the [Philippine] National Police and Department of Justice, which both concluded in October 1995 that the victim had committed suicide, it now appears undisputed that the death of [Phillip Pestaño] was a violent one, resulting from a homicide. The [Philippine Authorities’] submissions of 18 January and 8 May 2008, contending that [Spouses Pestaño]’s case was “an ordinary criminal case”, at least concede this fact…”

The UNHRC took note of the following:[7]

conclusions of the substantial Senate report of 25 January 1998, which established that the victim was shot on board the BRP Bacolod City on 27 September 1995, that there had been a deliberate attempt to make it appear that [he] killed himself, and which recommended that an independent investigation be conducted.

that an administrative and criminal action filed by [Spouses Pestaño] is currently pending against members of the [Philippine]’s Navy, i.e. of an organ of the [state].

[Spouses Pestaño]’s assertions that two other members of the [Philippine] Navy who were close to the victim, as well as another Navy Ensign who allegedly participated in the illicit boarding of drugs on the BRP Bacolod City, and who had engaged in communications with [Spouses Pestaño] about their son’s death, all died or disappeared in mysterious circumstances between October 1995 and January 1996.

[Spouses Pestaño]’s report of having been threatened by a Vice-Admiral of the [Philippine] Navy to lose their business with the Navy should they persist in their complaint. As they pursued their action, [Spouses Pestaño] reportedly lost their business, and their nephew, the company’s property custodian, was killed.

In the absence of rebuttal statements, or any comments from the [Philippine Authorities] on these facts, the Committee gives due weight to the [Spouses Pestaño]’s contentions, which raise a strong presumption of direct participation of the [Philippine Government] in the violation of their son’s right to life.

The UNHRC then considered the following:[8]

that the killing of [Spouses Pestaño]’s son on board a ship of the [Philippine] Navy warranted a speedy, independent investigation on the possible involvement of the Navy in the crime. … To simply state that there was no direct participation of the State party in the violation of the victim’s right to life falls short of fulfilling such positive obligation under the Covenant. While close to fifteen years elapsed since the death of the victim, [Spouses Pestaño] are still ignorant of the circumstances surrounding their son’s death, and the [Philippine] authorities have yet to initiate an independent investigation. In its submission of 8 May 2008, the [Philippine Authorities] referred to an Order of 10 August 2007 of the Office of the Ombudsman, which deemed it necessary to conduct further proceedings … in the case. The Committee is not aware, however, of any preliminary proceedings undertaken by that Office since an action was filed de novo by [Spouses Pestaño] in October 2005. Since that date, no suspect was prosecuted, or tried, let alone convicted, and [Spouses Pestaño] were not compensated for the tragic loss of their son.

that the death of [Phillip Pestaño] is directly attributable to the [Philippine Authorities]. When a person dies in circumstances that might involve a violation of the right to life, the State party is bound to conduct an investigation and ensure that there is no impunity. The [Philippine Authorities] must accordingly be held to be in breach of its obligation, under article 6, read in conjunction with article 2, paragraph 3, to properly investigate the death of [Phillip Pestaño], prosecute the perpetrators, and ensure redress.

Violation of Article 2, paragraph 3(a) of the ICCPR

The UNHRC states that “[U]nder article 2, paragraph 3(a), of the Covenant, the [Philippines] is under an obligation to provide [Spouses Pestaño] with an effective remedy in the form, inter alia, of an impartial, effective and timely investigation into the circumstances of their son’s death, prosecution of perpetrators, and adequate compensation. The [Philippines] is also under an obligation to prevent similar violations in the future.”[9]

In ending, the UNHRC relayed its wish “to receive from the [Philippines], within 180 days, information about the measures taken to give effect to the Committee's Views.”[10]

We are unaware if the UNHRC’s wish was granted.

Violation of Article 9, paragraph 1 of the ICCPR

In claiming violation of article 9 paragraph 1of the Covenant, the UNHRC stated that “[Spouses Pestaño] claim that they received an anonymous call, informing them that their son’s life was in danger, the day before he was found dead. However, there is no evidence that [Spouses Pestaño] reported these threats against their son to [Philippine] authorities, and if so, that the [Philippine Authorities] failed to take appropriate action for this protection. Nor is there any conclusive evidence that the [Philippine Authorities were] involved in threatening [Phillip Pestaño]. In the absence of any further arguments put forward by [Spouses Pestaño] on this issue, the Committee [considered] that these claims are not sufficiently substantiated for the purposes of admissibility and [therefore] inadmissible ...”[11]

Violation of Article 17, paragraph 1 of the ICCPR

The UNHRC ruled similarly regarding the alleged violation of Article 17 paragraph 1 of the Covenant since [Spouses Pestaño] claim that “the [Philippine Authorities’] attempt to make it appear that [Phillip Pestaño] committed suicide, is to be construed as an unlawful attack against his honour. [The Committee considered] that this claim [was not] sufficiently substantiated for the purposes of admissibility, and is inadmissible …”[12]

It is ironic and deeply sad that an international body had to deliberate upon the merits of what is clearly a local criminal affair. Justice delayed is justice denied they say. Nevertheless, the filing of the cases, while long overdue, is still a welcome development. We can only hope that the Philippine Government now stops its stonewalling, cleans its ranks, and help in any one’s sincere pursuit of justice. A much cleaner government would have prevented the early and unjustified death of Phillip Pestaño. A more just government would now support Felipe and Evelyn Pestaño any way they can and prevent the grief of families like theirs in the future.

[1] Pagulong, C. J. (2012, January 13). Timeline: Pestaño murder case . Retrieved from http://www.philstar.com/Article.aspx?articleId=767353&publicationSubCategoryId=63

[2] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.unhcr.org/refworld/docid/3ae6b3aa0.html [accessed 14 January 2012] -

Article 6

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

[3] Ibid. -

Article 2

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

[4] Ibid. -

Article 9

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

[5] Ibid. -

Article 17

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

[6] Pestaño v. The Philippines, CCPR/C/98/D/1619/2007, UN Human Rights Committee (HRC), 11 May 2010, available at: http://www.unhcr.org/refworld/docid/4c19e3692.html [accessed 14 January 2012]

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid.

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BIG BANG THEORY (The Law on the Sale, Manufacture, Distribution and Use Of Firecrackers and Other Pyrotechnic Devices)

2011-12-29T19:32:00.010+08:00

By Siesta-friendly

Well, the only way to prevent being lit up yourself is to stop using fireworks in the first place. People from other countries leave the fireworks to experts, why can’t we? Anyway, if you must play with fireworks (and we’ll never understand why), the law on the matter is Republic Act No. 7183 (An Act Regulating the Sale, Manufacture, Distribution and Use OfFirecrackers and Other Pyrotechnic Devices).[1]

Allowed Firecrackers and Pyrotechnics

Initially, under Sec. 2. of RA 7183, the following common types of firecrackers and pyrotechnic devices may be manufactured, sold, distributed and used:

Firecrackers:

(1) Baby rocket — A firecracker with a stick so constructed that lighting of the wick will propel the whole thing to lift a few meters before exploding. The firecracker is about 1½ inches in length by 3/8 inch in diameter while the stick is about a foot in length;

(2) Bawang — A firecracker larger than a triangulo with 1/3 teaspoon of powder packed in cardboard tied around with abaca strings and wrapped in shape of garlic;

(3) Small triangulo — A firecracker shaped like a triangle with powder content less than the bawang and usually wrapped in brown paper measuring ¾ inch length in its longest side;

(4) Pulling of strings — A firecracker consisting of a small tube about an inch in length and less than ¼ of an inch in diameter with strings on each end. Pulling both strings will cause the firecracker to explode;

(5) Paper caps — Minute amount of black powder spread in either small strips of paper on a small sheet used for children's toy guns;

(6) El diablo — Firecrackers tubular in shape about 1¼ inches in length and less than ¼ inch in diameter with a wick; also known as labintador;

(7) Watusi — Usually reddish in color about 1 ½ inches in length and 1/10 inch in width usually ignited by friction to produce a dancing movement and a crackling sound;

(8) Judah's belt — A string of firecrackers consisting of either diablos or small triangulos that can number up to a hundred or thereabout and culminating in large firecracker usually a bawang;

(9) Sky rocket (kwitis) — A large version of a baby rocket designed to be propelled to a height of 40 to 50 feet before exploding;

(10) Other types equivalent to the foregoing in explosive content.

Pyrotechnic Devices:

(1) Sparklers — Pyrotechnic devices usually made of black powder on a piece of wire or inside a paper tube designed to light up and glow after igniting;

(2) Luces — Any of several kinds of sparklers;

(3) Fountain — A kind of sparkler conical in shape which is lighted on the ground and designed to provide various rising colors and intermittent lights upon being ignited;

(4) Jumbo regular and special — A kind of sparkler similar to a "fountain" but bigger in size;

(5) Mabuhay — Sparklers bunched into a bundle of a dozen pieces;

(6) Roman candle — A sparkler similar to a "fountain" but shaped like a big candle;

(7) Trompillo — A pyrotechnic device usually fastened at the center and designed to spin first clockwise and then counter-clockwise and provides various colored lights upon being ignited;

(8) Airwolf — A kind of sky rocket shaped like an airplane with a propeller to rise about 40 or 50 feet and provide various kinds of light while aloft;

(9) Whistle device — Any of the various kinds of firecrackers or pyrotechnic designed to either simply emit a whistle-like sound or explode afterwards upon being ignited;

(10)Butterfly — Butterfly-shaped pyrotechnic device designed to lift above ground while providing light;

(11) All kinds of pyrotechnic devices (pailaw); and

(12) Other types equivalent to the foregoing devices.

Prohibited Firecrackers and Pyrotechnics

Under Sec. 3 of RA 7183 “[t]he manufacture, sale, distribution and use of other types of firecrackers and pyrotechnic devices not mentioned in [Sec. 2 above], of such explosive content that could endanger life and limb, such as atomic big triangulo and super lolo and their equivalent are hereby prohibited. Determination of what constitutes prohibited firecrackers and pyrotechnic devices shall be vested with the Director-General of the Philippine National Police (PNP).”

HOWEVER, as of December 22, 2010, the following have since been banned by the Department of Health (DOH):

1. Piccolo

2. Pla-pla

3. 5 -Star

4. Atomic Bomb

5. Triangulo

6. Super Lolo

7. Boga

8. Watusi

In case there are other kinds of firecrackers higher/more explosive than those in the list of banned firecrackers, consider it as illegal.[2]

In its website, the PNP lists other specifically prohibited firecrackers: “Big Triangle, Super Lolo and equivalents, Mother Rocket, Five Star, Og, Pla-Pla, Pillbox, Firecrackers without labels and other firecrackers and pyrotechnic devices that could endanger life and limb including ingenious underground fabrications such as Goodbye Earth, Atomic, and other dangerous firecrackers manufactured by illegal fireworks makers.”[3]

And on December 26, 2011, GMANews posted an updated list of the firecrackers prohibited (by the DOH and Department of Trade and Industry) for sale and manufacture in the country:

1. Watusi or the “dancing firecracker.” It was initially allowed for sale and manufacture under RA 7183, but was eventually banned because it causes poisoning when ingested, especially among children.

2. Piccolo – This firecracker has been the leading cause of firecracker-related injuries since 2007. The Department of Health banned it in 2007 because it can explode on the hands, and may cause death when ingested.

3. Super Lolo and Atomic Big Triangulo – two firecrackers specifically mentioned in RA 7183.

4. Mother Rockets – firecracker with a stick designed as a propellant upon lighting the wick.

5. Lolo Thunder – a powerful firecracker twice the size of a Five Star.

6. Pillbox – a firecracker that causes a series of sparks when lit.

7. Boga – traditional canon made from PVC pipe using denatured alcohol as explosive ingredient.

8. Big Judah’s belt – a string of firecrackers consisting of smaller firecrackers that number up to a hundred, and culminating in a larger and more powerful firecracker.

9. Big Bawang – a firecracker packed in cardboard tied around with abaca strings, giving it the shape of a large garlic.

10. Kwiton – aerial firecracker which explodes several times when lit.

11. Goodbye Philippines – giant triangle-shaped firecracker which packs a powerful explosion.

12. Kabasi – a triangle-sized explosive twice the size of a Pla-pla.

Other banned firecrackers include the “Atomic Bomb,” Five Star, Pla-pla, Og, Giant Whistle Bomb, and unlabelled firecrackers.[4]

In its Aksyon: Paputok Injury Reduction website, the DOH “strongly reminded the public that most cases of fireworks-related injuries come from the 1-10 years age group, totalling 330 cases or 34% of all injuries. This group is followed by the 11-20 years age group in number of injuries. It was also found that cases reach their peak during December 31 and January 1. Furthermore, DOH statistics of last year’s holiday celebrations reveal that most injuries were due to piccolo, kwitis, five star, pla-pla, and luces.”[5]

The DOH’s five reminders to prevent harm and injury are: 1) mapanganib ang paggamit ng paputok (fireworks cause injuries and endanger health); 2) lahat ng paputok ay bawal sa bata (children should not use any fireworks); 3) umiwas sa mga taong nagpapaputok(keep safe and away from exploding fireworks); 4) Huwag mamulot ng mga di sumabog na paputok (never pick used fireworks); and, 5) Magpagamot kaagad kapag naputukan(seek immediate medical treatment for all firework injuries).[6]

Buy only from licensed manufacturers, sellers, distributors

License or permit to manufacture, sell and distribute firecrackers and other pyrotechnic devices shall be granted only for the manufacture, sale and distribution of allowed firecrackers and other pyrotechnic devices. Under no circumstances shall a license or permit be granted for the manufacture, sale and/or distribution of prohibited firecrackers and other pyrotechnic devices. (Sec. 4, RA 7183)

Firecrackers and pyrotechnic devices shall bear labels indicating the name and address of their manufacturers and warning instructions written in Filipino and English. (Sec. 8)

Imported firecrackers and fireworks are prohibited

The importation of finished firecrackers and fireworks shall be prohibited. Only duly licensed manufacturers shall be allowed to import chemicals or explosive ingredients used in the manufacture of firecrackers and pyrotechnic devices. (Sec. 6)

Other Safety Guidelines

For those in neighborhoods with firecracker manufacturers, seller or distributors, note the following regulations to be followed -

Sec. 7. Safety Guidelines. — Strict compliance of the following safety precautions, rules and regulations shall be observed by manufacturers, distributors and users of firecrackers and pyrotechnic devices:

(a) A zone shall be designed by the local government unit where a manufacturing complex may be established. The outer perimeter of this zone shall be at least three hundred (300) meters away from the nearest residential units. Once a zone has been defined, no residential unit shall be permitted nearer than three hundred (300) meters from the perimeter of such zone;

(b) The manufacturing complex shall be governed by, but not limited to, the following safety measures:

(1) All buildings shall have adequate ventilation, no concrete floors, must be leak-proof and furnished with necessary fire extinguishers;

(2) The warehouse must be at least fifty (50) meters away from any processing station of the complex; and

(3) The following processing stations of the complex shall be laid out according to the indicated minimum distance from each other with all sides open:

(i) Mixing 50 MTS

(ii) Grinding 40 MTS

(iii) Packaging 40 MTS

(iv) Nagmimitsa 20 MTS

(v) Loading 20 MTS

Penalties

Any person who manufactures, sells, distributes or uses firecrackers and other pyrotechnic devices in violation of the provisions of this Act shall be punished by a fine of not less than P20,000.00 nor more than P30,000.00, or imprisonment of not less than 6 months nor more than 1 year, or both such fine and imprisonment, at the discretion of the court in addition to the cancellation of his license and business permit and the confiscation by the Government of his inventory or stock. (Sec. 11)

Like clockwork, at this time of the year there are already numerous cases of injuries and even death due to firecrackers. Making a big bang can be done without firecrakers (and we do not mean shooting a gun!). Driving away bad spirits or bringing good luck should not include risking life, limb or property. Resorting to certain pyrotechnics is not only against the law but also common sense. As one entry made in Facebook says, why not spend the money instead on the victims of Sendong? Now that is one big bang gesture that should bring you back a lifetime’s worth of goodwill.

[1] January 30, 1992.

[2] Department of Health, (2010). List of illegal and legal firecrackers. Retrieved from website: http://bert.doh.gov.ph/doh_apir/articlelist.php?start=4

[3] Philippine National Police, (n.d.). Pnp intensifies crackdown on outlawed fireworks. Retrieved from website: http://www.pnp.gov.ph/main/index.php?option=com_content&view=article&id=577

[4] Calonzo, A. (2011, December 26). List of fireworks and firecrackers prohibited in the phl. Retrieved from http://www.gmanetwork.com/news/story/242771/news/nation/list-of-fireworks-and-firecrackers-prohibited-in-the-phl

[5] Department of Health, (2011). Doh calls for apir - aksyon: Paputok injury reduction (give me five) campaign - this holiday season. Retrieved from website: http://bert.doh.gov.ph/doh_apir/articlelist.php?start=1

[6] Supra.

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HOSPITAL ARREST (Anti-Detention Of Patients Act)

2011-12-12T09:14:00.006+08:00

By Siesta-friendly

Like Mary and Joseph looking for a place to give birth, Eleanor and Edgar approached several government hospitals for Eleanor’s premature delivery. And like Mary and Joseph who were several times turned away, Eleanor and Edgar “were refused admission for some reason or other. Some facilities claimed they did not have incubators for premature babies.”[1]

We still cannot understand how hospitals, especially government hospitals, continue to turn away people in need of medical help. We do not think that’s mere ignorance of the almost 15-year old law that is Republic Act No. 8344 (“An Act Penalizing The Refusal Of Hospitals And Medical Clinics To Administer Appropriate Initial Medical Treatment And Support In Emergency Or Serious Cases …), we think its just the blatant disregard of it.

But that is not why we are making this post since we’ve already discussed RA 8344 previously - it’s because Eleanor and Edgar’s plight did not end upon the birth of their boy. While Mary and Joseph were given gifts by wise men, Edgar and Eleanor were given a ransom demand by not so wise men. The hospital told them that they had to pay “more than P700,000 for the delivery and care of [their] premature baby.”[2]

Eleanor is a golf caddie while Edgar is an unemployed former grass cutter. So, from the time of their son’s birth on July 19, 2011 until November 25, 2011 – over 4 months - Baby John stayed inside the University of Perpetual Help - Dr. Jose Tamayo Medical Center in Biñan (UPH), Laguna not because he was sick but because his parents couldn’t pay the (unbelievable) P700,000.00-plus hospital bill.

Baby John was released only on November 25, 2011after media exposure of their story and after the couple’s appeal to the Department of Health (DOH). Pursuant to R.A. 9439 (An Act Prohibiting The Detention Of Patients In Hospitals And Medical Clinics On Grounds Of Nonpayment Of Hospital Bills Or Medical Expenses)[3], Eleanor and Edgar “signed a promissory note undertaking to pay the hospital bill in monthly installments.”[4]

Illegal Hospital Detention

We don’t have to tell you that what UPH did was wrong, at least morally. But how wrong were they, legally?

Let’s start with Section 1 of RA 9439 which states:

It shall be unlawful for any hospital or medical clinic in the country to detain or to otherwise cause, directly or indirectly, the detention of patients who have fully or partially recovered or have been adequately attended to or who may have died, for reasons of nonpayment in part or in full of hospital bills or medical expenses.

The news reports do not contain any allegation that Baby John was being held by UPH because he was still sick. Although, it was reported that for “four months [Eleanor] was not allowed to touch or hug her baby as hospital staff said he needed intensive care because, having weighed only 1.14 kilograms at birth, he had pneumonia and pulmonary problems.”[5] That excuse seems to be a defense against Eleanor’s claim of lack of contact with her baby than a defense in favor of the baby’s detention.

Section 2 further states:

Patients who have fully or partially recovered and who already wish to leave the hospital or medical clinic but are financially incapable to settle, in part or in full, their hospitalization expenses, including professional fees and medicines, shall be allowed to leave the hospital or medical clinic, with a right to demand the issuance of the corresponding medical certificate and other pertinent papers required for the release of the patient from the hospital or medical clinic upon the execution of a promissory note covering the unpaid obligation…

Promissory Note

Unfortunately, under the circumstances, hospitals/clinics are at best left with –

1) A promissory note required as follows -

The promissory note shall be secured by either a mortgage or by a guarantee of a co-maker, who will be jointly and severally liable with the patient for the unpaid obligation. In the case of a deceased patient, the corresponding death certificate and other documents required for interment and other purposes shall be released to any of his surviving relatives requesting for the same. (Section 2)

In the case of a deceased patient, DOH Administrative Order No. 2008-0001 (Implementing Rules And Regulations of Republic Act No. 9439) [6] clarifies that any of the surviving relatives who refuse to execute a promissory note shall be allowed to claim the cadaver and can demand the issuance of death certificate and other pertinent documents for interment purposes, but documents for other purposes shall be released only after the execution of a promissory note. (Part V. A. Paragraph 3)

2) An assignment of proceeds, as follows:

DOH AO No. 2008-0001 adds that in the case of a deceased patient and in the event that the above-mentioned documents “will be needed for the purposes of getting the benefits from the SSS, GSIS, Philhealth, insurance policies or pre-need plans, the hospital may require the execution of an assignment of proceeds up to the extent of the hospital bills or medical expenses/hospitalization.” (Part V. A. Paragraph 2)

The only other protection for hospitals/clinics is that RA 9439 does not apply to “patients who stayed in private rooms” (Section 2). So does that mean private room patients can be held by hospitals/clinics for ransom if they can’t pay? Food for thought.

Illegal Detention of Cadaver

Yet, despite the clear mandate of the RA 9439 and DOH AO No. 2008-0001, hospitals continue to find excuses to try and circumvent the law -

“To add insult to injury, the hospital put us through a terrible and humiliating ordeal before we were able to take my mother’s body for a proper funeral and burial. We were asked to provide collateral, postdated checks, OR/CR of vehicles or find a guarantor who will vouch for us.

Funeraria Paz arrived to take mama’s body but the hospital insisted that we needed to keep the body at Holy Trinity for “preservation” while we are negotiating the terms of the promissory note. They insisted that they weren’t holding my mom’s body, but repeatedly refused to release it. They advised us to keep the body at Holy Trinity for preservation in a fridge for a “minimal fee” of P4,000-5,000 per day.” – Account of Alva Marano-Alfonso detailing “what the Marano family went through when their beloved mother, Josephine, passed away last November 16 at age 56. The body was held for ten hours, pending down-payment of P200k. The title of their home is being demanded by the Paranaque Doctors’ Hospital as collateral — until their bills are fully settled.”[7]

DOH assistance

To help both the patients and the hospitals/clinics, the DOH is mandated to, “as far as practicable, assist patients in looking for financial assistance from government and non-government sources to settle the unpaid hospital bills or medical expenses / hospitalization expenses. Toward this end, the DOH shall work closely with fincancial institutions like, but not limited to, [Philhealth], [PCSO], [PAGCOR], [LGUs], as well as Congress, to provide funds for this purpose. (Part V. B. Paragraph 1 c))

Although, in the case of Eleanor and Edgar, the DOH guaranteed P10,000.00 financial assistance and the PCSO guaranteed a P50,000.00 donation, the government should be made to guaranty more substantial financial assistance to indigent patients.

Liability of hospital/clinic

Any officer or employee of the hospital or medical clinic responsible for releasing patients, who violates the provisions of R.A. 9439 and its implementing rules and regulations shall be punished by a fine of not less than P20,000.00, but not more than P50,000.00, or imprisonment of not less than 1 month, but not more than 6 months, or both such fine and imprisonment, at the discretion of the proper court. (Section 3, RA 9439; Part V. B. Paragraph 3, DOH AO No. 2008-0001)

Business is business, true; but lives are lives – priceless and invaluable. Lives are mothers, fathers, daughters, sons, relatives, friends, loved ones. Business is just business. For a profession that deals with lives regularly and intimately, it is appalling that it should be health personnel who should treat people the worst if only to continue making money.

[1] Alcantara, S. R. (2011, November 20). Baby john’s plight touches netizens. Retrieved from http://technology.inquirer.net/6299/baby-john’s-plight-touches-netizens/

[2] Supra.

[3] April 27, 2007.

[4] Alcantara, S. R. (2011, December 4). ‘Hostage’ baby is finally home. Retrieved from http://newsinfo.inquirer.net/104923/hostage-baby-is-finally-home

[5] Supra.

[6] January 7, 2008

[7] Villanueva-Ong, Y. (2011, December 6). The high cost of dying. Retrieved from http://www.philstar.com/Article.aspx?articleId=755429&publicationSubCategoryId=64

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Say A Little Prayer: Court Forms

2011-12-05T08:17:00.003+08:00

By Obiter07

A child gets to read over the documents her dad has in the office. It is actually something that has to be filed in court. He asks, “looks like you are really desperate here, Daddy.” The dad asks why does she say that and she replies, “Because you have a prayer at the end.”

If you have ever looked at pleadings or the papers that are filed in court by your lawyers, invariably the last portion has the heading “Prayer.” Legalese is sometimes hard to understand. It pays to have some knowledge of the forms and how they appear.

Let us have a look at the lower courts and civil cases. There are actually rules on court papers or what has been termed as “pleadings.” Pleadings contain “the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Section 1, Rule 6).

Complaint and Answer

A party’s claims (or whatever you are asking from your opponent, be it damages or requiring something to be done) are contained in the “complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention.” And the “defenses of a party are alleged in the answer to the pleading asserting a claim against him.” In short, someone files a claim and you file an “Answer” to that claim. Thereafter, the claimant can file a “Reply” to the answer (Section 2). It is not in the rules but lawyers then usually file a rejoinder to the reply. No lawyer worth his salt will allow the other party to have the last word. So after the rejoinder, you get to see the “Sur-rejoinder” or a “Sur-Reply.” So even if the rules don’t expressly allow such pleadings, trust the lawyers to find something to go around them.

Reply

A reply is “a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint (Section 10).” So if the defendant files an Answer with new matters, the Reply is the plaintiff’s way of answering back. However, he may choose not to, as all new matters are deemed controverted anyway.

Ad Cautelam

You will even see pleadings like “Answer Ad Cautelam” or a “Manifestation Ad Cautelam.” What are these things? It just means that your lawyers are filing something “for caution” so as not to forestall something for you. For example, an “Answer Ad Cautelam” may be filed if your lawyer thinks his motion for extension of time may be arbitrarily denied or if he is still questioning the jurisdiction of the court, but does not want you to be defaulted for failing to file an answer within the time allowed. Strictly speaking, such pleadings are not expressly provided for in the Rules.

Defenses

What are the defenses you can raise? These may either be negative or positive defenses. ‘”A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. An “affirmative defense” is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.” These include “fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance (Section 5). For example, a negative defense would be to denying you owe a debt to the plaintiff. An affirmative defense would be that the cause of action on the debt has prescribed.

Counterclaim and Cross-claim

If you also have a claim against the plaintiff, then you file a counterclaim against him. “A counterclaim is any claim which a defending party may have against an opposing party. (Section 6)” Or if you have co-defendants against whom you have a claim, then you can make a cross-claim against them. “A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant (Section 8).” How could such a situation come about? It could be that you are a guarantor of a debt. If the borrower fails to pay, and you are the only one sued by the creditor, you may wish to bring in the borrower as a party to the case, against whom you will demand compensation if you are adjudged liable to pay.

Third-party Complaints

It doesn’t end with co-parties though. Since misery loves company, then the defendant can bring in other parties by filing third party or more complaints against persons in respect of complaint. “A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.” (Section 11). But this must be with the court’s permission. Once this complaint is filed, then we begin with an Answer all over again."A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff (Section 13).”

Pleading; Form

From the pleadings contents, we go to the form. There must be a caption which “sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated (Section 1, Rule 7).

The body of the pleading “sets forth its designation (whether it an Answer or Reply for example), the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. It is to be divided into numbered paragraphs, “each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. There should be heading and when “two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action," of the second by "second cause of action," and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect (Section 2).”

And we come to the prayer, since the “pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. Section 2”

The pleading must be dated (Section 2). At the end it “must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.” Signing is not an empty exercise. “The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

While an “unsigned pleading produces no legal effect,” failure to sign is not always fatal. As “the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action (Section 3).”

A pleading may need to be verified or be under oath if required by applicable law or rules. (Section 4) Lastly, the plaintiff or principal party has to certify that he is not engaging in forum shopping (Section 5). What is forum shopping?

“A party is guilty of forum shopping when he repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely, by some other court. And what is truly important to consider in determining whether forum shopping exists is the vexation caused the courts and the litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different for a upon the same issues. TANTOY, SR., vs .
COURT OF APPEALS, ET AL. ( G.R. No. 141427 April 20, 2001)”

This is only a quick overview of the rules for civil actions. There are particular requirements for appeals and petitions before the courts. Nowhere in the rules is there mention that a mere letter will suffice in order to be entertained by any court. But as at least two (2) cases will show, the Supreme Court has seen fit to do away with formalities for reasons of its own, allowing letters to re-open its decisions. It has done so when it recalled the decision rendered by the court in 2 recent cases: a labor case involving Philippine Airlines[1] and a case deciding for the constitutionality of the creation of 16 cities, after previously ruling that it was not.[2] We can only pray that they are guided by right and reason.

[1] (Supreme Court recalls final ruling on PAL cabin layoffs) Mendoza’s letter does trick; airline union outraged By Philip C. Tubeza, Philippine Daily Inquirer, October 11, 2011, ^{http://newsinfo.inquirer.net/73877/supreme-court-recalls-final-ruling-on-pal-cabin-layoffs}

[2] SC procedures and flip-flops, GOTCHA By Jarius Bondoc, The Philippine Star, http://www.philstar.com/Article.aspx?articleId=738204&publicationSubCategoryId=64

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Estate Planning Basics (Transferring Real Property to your Children)

2011-11-28T11:41:00.005+08:00

By Siesta-friendly

It is not uncommon to be asked what parents can do to save on taxes when they transfer real property to their children. There are 3 options: a) donating them, b) selling them, 3) converting them into shares of stock and transferring the shares, to their children.

Choice c) is best made when there are several properties involved and when the parent still wants control over the properties. Although a property for shares transaction is tax-free, taxes shall be imposed once the shares are transferred to the children (but they will be lower than taxes applicable to donation or sale of property). Plus. there are compliance requirements that have to be factored in, like the periodic filings with the SEC and the BIR.

If there are only a few properties involved and the parent deems it best to already dispose of them amongst the children (provided they are already of legal age), the better alternatives are donation or sale. The taxes payable as regards the donation or sale of real property depend on the value of the property involved. Note that since the property is now vested in the names of the children, they can do whatever they want with the property. If they are already married, sometimes this lead to some difficulties for the donor-parents. This is particularly so if the donees are governed by the absolute community of property regime (meaning, the wife becomes co-owner of the property) as is usually the case if they were married under the Family Code.

Consider: if the donor-parent already transfers the property where he is residing and intends to reside until his death, then he no longer has control over it once he loses ownership of it. What if the child/children mortgage the property and lose it? Parents may want to make it easy for their children once they die but they have to be practical in their own favor too while they are still alive.

Tax payable by donor of real property

Under Sec. 99 of the Tax Code, the tax shall be computed in accordance with the following schedule:

If the gift is valued:

Over	But Not Over	The Tax Shall be	Plus	Of the Excess Over
	P 100,000	Exempt
P 100,000	200,000	0	2%	P100,000
200,000	500,000	2,000	4%	200,000
500,000	1,000,000	14,000	6%	500,000
1,000,000	3,000,000	44,000	8%	1,000,000
3,000,000	5,000,000	204,000	10%	3,000,000
5,000,000	10,000,000	404,000	12%	5,000,000
10,000,000		1,004,000	15%	10,000,000

A donor has to make sure, however, that the donations do not prejudice the legitime of the other heirs.

Capital Gains Tax on Sale of Real Property

Under Sec 24 D), a final tax of 6% based on the gross selling price or current fair market value or the property, whichever is higher, shall be imposed upon capital gains presumed to have been realized from the sale, exchange, or other disposition of real property located in the Philippines.

Estate (Inheritance) Tax

Of course, if you don’t care much about your children, you can either donate everything to the government tax-free or, still leave everything to your children but let them pay for the more oppressive estate taxes under Sec. 84 -

If the net estate is:

Over	But Not Over	The Tax shall be	Plus	Of the Excess Over
	P 200,000	Exempt
P 200,000	550,000	0	5%	P 200,000
500,000	2,000,000	P 15,000	8%	500,000
2,000,000	5,000,000	135,000	11%	2,000,000
5,000,000	10,000,000	465,000	15%	5,000,000
10,000,000	And Over	1,215,000	20%	10,000,000

Why think of these things? As they say, you can’t take it with you when you go, so you might as well plan for it.

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FAST PUNCHERS (The argument in favor of using Hawk-Eye type technology in boxing matches)

2011-11-15T18:16:00.017+08:00

By Siesta-friendly

Hawk-eye camera-based technology has been used in international tennis matches (including 3 Grand Slam events) and international cricket matches for a few years now. It’s already being developed for goal scoring accuracy in football. Perhaps it should be developed in boxing as well.

At the moment, there is an existing computer technology used in boxing to determine punch statistics – called Compubox – which the owner, Bob Canobbio, describes succinctly:

“The way it works is there are two operators. They share a laptop computer. They pick one fighter each. There are four keys for each operator. Jab connect, Jab miss, Power connect, Power miss. We call a non jab a power punch for lack of a better description. I know some people who really don’t really understand the program have said in the past, “How can a guy land 300 power punches and not knock the guy out?” Well we call it power punch because it sounds better than non jab.”[1]

Bob and Nic Canobbio Ringside (from http://compuboxonline.com/bio.php)

It would seem that at least half (the Mexican half) of the people who watched the Pacquiao-Marquez boxing match last November 10, 2011 thought that Juan Manuel Marquez won the fight hands down. Maybe even half of the Filipinos who watched the match thought the same.

Yet, many doubters would have surely changed their minds following reports of the stats revealed by Compubox below (click to enlarge):

Who knew, right? Marquez’s punches were so convincing and yet … well the stats speak for themselves. Pacquiao’s fists are apparently too fast for the non-ringside audience.

But, because the Compubox punch stats are inputted manually, perhaps camera-based technology can be developed so as to be officially accepted in determining points as has been done in international tennis and cricket matches. Manual punching of stats depends on the concentration of the operators in seeing the punches and their punching the correct keys.

In any case, the judges have spoken but maybe next time, the number of punches objectively and scientifically counted will have the final say, not the pundits and armchair boxers. “The More (punches) the Manny- er!”

P.S.

Perhaps the same camera-based technology can also enlighten boxing officials to penalize boxers who – consciously or not - repeatedly try to impede their opponents by stepping on the latter’s foot while punching or avoiding them –

[1] Perry, K. (2007, February 25). Fight report exclusive-compubox interview. Retrieved from http://www.fightreport.net/?p=958

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FIRING MISSES (Terminating Employment the Philippine Way)

2011-10-18T09:54:00.006+08:00

By Siesta-friendly

For business folk, Philippine labor laws can be too protective of labor. And it’s not as simple as Mr. Donald Trump saying “you’re fired!” The prime example is the provisions on security of tenure -

“ART. 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title.”

The Labor Code’s Implementing Rules specifically Rule I, Book VI add the relevant security of tenure provisions applicable to non-regular employees –

“Section 2. Security of tenure.

xxx

b) The foregoing [security of tenure provisions in cases of regular employment] shall also apply in cases of probationary employment: Provided, however, that in such cases, termination of employment due to failure of the employee to qualify in accordance with the standards of the employer made known to the former at the time of engagement may also be a ground for termination of employment.

c) In cases of employment covered by contracting or subcontracting arrangements, no employee shall be dismissed prior to the expiration of the contract between the principal and contractor or subcontractor as defined in Rule VIII-A, Book III of these Rules, unless the dismissal is for just or authorized cause, or is brought about by the completion of the phase of the contract for which the employee was engaged but, in any case, subject to the requirements of due process or prior notice.”

Just and Authorized Causes for Termination

So, in general, just or authorized causes naturally negate security of tenure. What are these just or authorized causes?

The just causes for terminating an employee are found in Article 282 of the Labor Code:

“ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing.”

The authorized causes are in the succeeding articles: 283 (Closure of establishment and reduction of personnel) and 284 (Disease as ground for termination). They are as follows:

1) installation of labor-saving devices

2) redundancy

3) retrenchment to prevent losses

4) the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, or

5) when the employee has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.

And if you fire your employee without any legal cause?

“An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.” (ART. 279.).

Backwages, mind you, can run indefinitely as long as the case is pending thereby resulting in a windfall for the employee. Unless, of course, you’re PAL or you have PAL’s lawyer and a mere letter to the Supreme Court can change everything.

Anyway, here’s what the Supreme Court has had to expound on the matter -

“… an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.

The normal consequences of [the employee’s] illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages.” (Mt. Carmel College vs. Resuena, et al. G.R. No. 173076, October 10, 2007)

Due Process: 2 Written Notices + 1 Hearing rule

Finding just or authorized causes is not enough. The laws are strict on due process and have imposed the following requirements –

“For termination of employment based on just cases as defined in Article 282 of the Labor Code:

(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(ii) A hearing or conference during which the employee concerned, with the assistance of counsel, if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

For termination of employment as defined in Article 283 of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the termination, specifying the ground or grounds for termination.

If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.” (Section 2, Rule I, Book VI, Implementing Rules of the Labor Code)

Check out how the Supreme Court strictly applied the due process rule despite the existence of sufficient cause for termination -

“.. respondent [employee] was not issued a written notice charging him of committing an infraction. The law is clear on the matter. A verbal appraisal of the charges against an employee does not comply with the first notice requirement. In Pepsi Cola Bottling Co. v. NLRC, the Court held that consultations or conferences are not a substitute for the actual observance of notice and hearing. Also, in Loadstar Shipping Co., Inc. v. Mesano, the Court, sanctioning the employer for disregarding the due process requirements, held that the employee’s written explanation did not excuse the fact that there was a complete absence of the first notice.

Second, even assuming that [employer] petitioner KKTI was able to furnish respondent an Irregularity Report notifying him of his offense, such would not comply with the requirements of the law. We observe from the irregularity reports against respondent for his other offenses that such contained merely a general description of the charges against him. The reports did not even state a company rule or policy that the employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of employment under Art. 282 of the Labor Code. Thus, KKTI’s "standard" charge sheet is not sufficient notice to the employee.

Third, no hearing was conducted. Regardless of respondent’s written explanation, a hearing was still necessary in order for him to clarify and present evidence in support of his defense. Moreover, respondent made the letter merely to explain the circumstances relating to the irregularity in his October 28, 2001 Conductor’s Trip Report. He was unaware that a dismissal proceeding was already being effected. Thus, he was surprised to receive the November 26, 2001 termination letter indicating as grounds, not only his October 28, 2001 infraction, but also his previous infractions.

xxx

WHEREFORE, the petition is PARTLY GRANTED and the September 16, 2004 Decision of the CA is MODIFIED by deleting the award of backwages and 13th-month pay. Instead, petitioner KKTI is ordered to indemnify respondent the amount of thirty thousand pesos (PhP 30,000) as nominal damages for failure to comply with the due process requirements in terminating the employment of respondent.” (King Of Kings Transport, et al. vs, Tinga, et al., G.R. No. 166208, June 29, 2007).

So employers, be very careful how you hire and fire your people. Even with a just or authorized cause for termination and the termination is declared legal, you may still end up being penalized for not following the required manner by which the firing should have been done. There may be no award of backwages, reinstatement or separation pay but you may still be ordered to pay nominal damages as in the case above.

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SIZE DOES MATTER: Annulment based on insignificant proportions

2011-09-24T11:08:00.021+08:00

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)

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

2011-09-15T12:16:00.016+08:00

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.

Privileges

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)

Incentives

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.

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,

“I

xxx

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.
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.
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.

xxx

IV.

xxx

C. PWD-RFs or application forms can be obtained from any of the following registration centers or means:

Office of the Mayor
Office of the Barangay Captain
NCDA or its regional counterpart
DSWD offices
Participating organizations with Memorandum of Agreements with the DOH
DOH Online Registration – www.doh.gov.ph/pwd_registry

D. Issuance of the appropriate document to confirm the medical condition of the applicant is as follows:

Disability	Document	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.

V. IMPLEMENTING GUIDELINES AND PROCEDURES

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:

Two “1×1” recent ID pictures with the names, and signatures or thumb marks at the back of the picture.
One (1) Valid ID
Document to confirm the medical or disability condition (See Section IV, D for the required document).

xxx

VI. VALIDITY AND RENEWAL OF THE PIC

The PIC issued to the PWD shall be valid for three (3) years.
The initial PIC is free of charge.
Renewal due to expiration, loss or damage shall be charged a minimal fee for the new PIC.

VII. USE OF 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.

xxx”

[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

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“I DO OR I SUE” (Breach of Promise to Marry)

2011-08-14T19:18:00.004+08:00

By Obiter07

You may have seen this just recently on the news with the headline “Malaysian groom sues runaway bride”. A Malaysian man has filed suit against his fiancee “for £219,000 after she left him six hours before their wedding.” He and his family “were distressed and embarrassed” when the bride “called off their June wedding at the last minute.” The groom had invited 1,200 guests and was “seeking compensation for damages and defamation” from the bride and her father.

Just in case it happens to you, way back in 1964, the Philippine Supreme Court decided a similar case in Wassmer vs. Velez, G.R. No. L-20089, December 26, 1964. But in this case it was the bride and not the groom who was left behind. As aptly observed by the High Court the “facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation.” In appropriate dramatic fashion, the wedding was set for September 4 when the groom left this note for the bride-to-be:

“Dear ___

Will have to postpone wedding — My mother opposes it. Am leaving on the Convair today.

Please do not ask too many people about the reason why — That would only create a scandal.

P_____

A telegram followed reassuring her that nothing had changed and that he would be back soon. He was not heard from again The bride sued for damages and was awarded “with P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs.” The defendant had been declared in defaut when he failed to file an answer.

Later, defendant filed a petition to be relieved from the judgment. The court set the case for possible settlement but ultimately, the defendant’s counsel manifested that “chances of settling the case amicably were nil.” The court denied the petition. Defendant appealed to the Supreme Court. The Court dismissed the appeal on the ground that a “petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) The defendant's affidavit that he has a good defense due to fortuitous events which stated “mere conclusions or opinions instead of facts” was not valid.

Defendant had contended that “the judgment is contrary to law” as "there is no provision of the Civil Code authorizing" an action for breach of promise to marry.” The Court agreed but stated that “the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." [underscoring supplied]

The Court adverted to the application for the license to contract marriage, how the wedding date was set, invitations printed and sent out, the trousseau and party dresses prepared and even the matrimonial bed with accessories having been purchased. Then after sending his note and subsequent telegram, defendant disappeared. It found that “Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid.”

This Court affirmed the judgment but modified the award of moral and exemplary damages to P15,000.00.

As the case and the news article shows, hell hath no fury like a man or woman scorned. And, under certain circumstances, if you fail to say “I do,” the other party can say “I sue.”

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WHEN THEY CAN MAKE YOU GO TO REHAB AND YOU CAN’T SAY NO, NO, NO (Compulsory Confinement under the Dangerous Drugs Act)

2011-08-08T08:42:00.005+08:00

By Siesta-friendly

If only Amy Winehouse could have been subjected to compulsory confinement as a drug dependent …

The Comprehensive Dangerous Drugs Act of 2002[1] provides for both (1) Voluntary Submission to confinement, treatment and rehabilitation (upon application submitted by the drug dependent himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity with the Dangerous Drugs Board or its duly recognized representative) and (2) Compulsory Confinement or Submission.

Apart from Compulsory Confinement or Submission, forced confinement may also be imposed under the Voluntary Submission Program.

Forced Reconfinement Under the Voluntary Submission Program

Under the Voluntary Submission Program, if a drug dependent escapes from the treatment and rehabilitation center where he voluntarily applied for treatment and rehabilitation, forced commitment may be imposed as follows -

1^st escape

Section 59. Escape and Recommitment for Confinement and Rehabilitation Under the Voluntary Submission Program. – Should a drug dependent under the voluntary submission program escape from the [treatment and rehabilitation] Center, he/she may submit himself/herself for recommitment within one (1) week therefrom, or his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity may, within said period, surrender him for recommitment, in which case the corresponding order shall be issued by the Board.

Should the escapee fail to submit himself/herself or be surrendered after one (1) week, the Board shall apply to the court for a recommitment order upon proof of previous commitment or his/her voluntary submission by the Board, the court may issue an order for recommitment within one (1) week.

Subsequent escape

If, subsequent to a recommitment, the dependent once again escapes from confinement, he/she shall be charged for violation of Section 15 [as a person found to be positive for use of any dangerous drug but not in possession of drugs, if guilty in the first offense] and be subjected under section 61 [to Compulsory Confinement], either upon order of the Board or upon order of the court, as the case may be. [Sec. 59]

Compulsory Confinement

There are 2 types of compulsory confinement, detailed below -

Where the Board first files a petition in court

SEC. 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply under the Voluntary Submission Program. – Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose.

A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with the Regional Trial Court of the province or city where such person is found.

After the petition is filed, the court, by an order, shall immediately fix a date for the hearing, and a copy of such order shall be served on the person alleged to be dependent on dangerous drugs, and to the one having charge of him.

If after such hearing and the facts so warrant, the court shall order the drug dependent to be examined by two (2) physicians accredited by the Board. If both physicians conclude that the respondent is not a drug dependent, the court shall order his/her discharge. If either physician finds him to be a dependent, the court shall conduct a hearing and consider all relevant evidence which may be offered. If the court finds him a drug dependent, it shall issue an order for his/her commitment to a treatment and rehabilitation center under the supervision of the DOH [Department of Health]. In any event, the order of discharge or order of confinement or commitment shall be issued not later than fifteen (15) days from the filing of the appropriate petition.

Where the Prosecutor or Court first notifies the Board

Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and Rehabilitation. – If a person charged with an offense where the imposable penalty is imprisonment of less than six (6) years and one (1) day, and is found by the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor or the court as the case may be, shall suspend all further proceedings and transmit copies of the record of the case to the Board.

In the event the Board determines, after medical examination, that public interest requires that such drug dependent be committed to a center for treatment and rehabilitation, it shall file a petition for his/her commitment with the regional trial court of the province or city where he/she is being investigated or tried: Provided, That where a criminal case is pending in court, such petition shall be filed in the said court. The court shall take judicial notice of the prior proceedings in the case and shall proceed to hear the petition. If the court finds him to be a drug dependent, it shall order his/her commitment to a Center for treatment and rehabilitation. The head of said Center shall submit to the court every four (4) months, or as often as the court may require, a written report on the progress of the treatment. If the dependent is rehabilitated, as certified by the center and the Board, he/she shall be returned to the court, which committed him, for his/her discharge therefrom.

Thereafter, his/her prosecution for any offense punishable by law shall be instituted or shall continue, as the case may be. In case of conviction, the judgment shall, if the accused is certified by the treatment and rehabilitation center to have maintained good behavior, indicate that he/she shall be given full credit for the period he/she was confined in the Center: Provided, however, That when the offense is for violation of Section 15 of this Act [when a person is found to be positive for use of any dangerous drug but not in possession of drugs, and is guilty in the first offense], the penalty thereof shall be deemed to have been served in the Center upon his/her release therefrom after certification by the Center and the Board that he/she is rehabilitated.

Board and Authorized Representatives

Since under the rules on Compulsory Confinement, only the Board and its authorized representatives may file a petition for confinement, let’s find out who comprise the Board and who may be the latter’s authorized representatives.

Section 78. Composition of the Board. – The Board shall be composed of seventeen (17) members wherein three (3) of which are permanent members, the other twelve (12) members shall be in an ex officio capacity and the two (2) shall be regular members.

The three (3) permanent members, who shall possess at least seven-year training and experience in the field of dangerous drugs and in any of the following fields: in law, medicine, criminology, psychology or social work, shall be appointed by the President of the Philippines. The President shall designate a Chairman, who shall have the rank of a secretary from among the three (3) permanent members who shall serve for six (6) years. Of the two (2) other members, who shall both have the rank of undersecretary, one (1) shall serve for four (4) years and the other for two (2) years. Thereafter, the persons appointed to succeed such members shall hold office for a term of six (6) years and until their successors shall have been duly appointed and qualified.

The other twelve (12) members who shall be ex officio members of the Board are the following:

(1) Secretary of the Department of Justice or his/her representative;

(2) Secretary of the Department of Health or his/her representative;

(3) Secretary of the Department of National Defense or his/her representative;

(4) Secretary of the Department of Finance or his/her representative;

(5) Secretary of the Department of Labor and Employment or his/her representative;

(6) Secretary of the Department of the Interior and Local Government or his/her representative;

(7) Secretary of the Department of Social Welfare and Development or his/her representative;

(8) Secretary of the Department of Foreign Affairs or his/her representative;

(9) Secretary of the Department of Education or his/her representative;

(10) Chairman of the Commission on Higher Education or his/her representative;

(11) Chairman of the National Youth Commission;

(12) Director General of the Philippine Drug Enforcement Agency.

Cabinet secretaries who are members of the Board may designate their duly authorized and permanent representatives whose ranks shall in no case be lower than undersecretary.

Under the rules on Compulsory Confinement, nothing precludes family and friends of drug dependents – and concerned parties - from appealing to the Board and their authorized representatives to file the petition for confinement. Love is Not a Losing Game.

I can’t help you if you won’t help yourself sang Amy Winehouse. Under RA 9165, we don’t have to leave it to drug dependents to get themselves rehab’d.

Thank you very much for the music, Amy. Rest in peace.

[1] Republic Act No. 9165, An Act Instituting The Comprehensive Dangerous Drugs Act Of 2002, Repealing Republic Act No. 6425, Otherwise Known As The Dangerous Drugs Act Of 1972, As Amended, Providing Funds Therefor, And For Other Purposes, June 7, 2002

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OWNERSHIP WITHOUT CITIZENSHIP (Property Ownership Rights of Natural-born Citizens who have lost Philippine citizenship)

2011-08-01T10:43:00.013+08:00

By Siesta-friendly

Are you a former Philippine citizen desiring to own real property in the Philippines yet not keen on acquiring dual citizenship? If so, you may still acquire local real estate pursuant to Section 8, Article XII of the Constitution which says “[a] natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. “

First of all, we will not discuss Section 7 Article XII of the Consitution which allows the transfer or conveyance of private lands to aliens in cases of hereditary succession. We will discuss how an alien and natural-born citizen of the Philippines who has lost his Philippine citizenship may purchase Philippine real estate

Republic Act 8179

Sec. 10 of R.A. 8179[1] provides the limitations, mentioned by said Section 8 Article XII, by first defining the term “transferee” as “[a]ny natural-born citizen who has lost his Philippine citizenship and who has the legal capacity to enter into a contract under Philippine Laws” and then limiting the area that may be transferred to them as follows:

a) private land up to a maximum area of 5,000 square meters in the case of urban land, or

b) private land up to a maximum area of 3 hectares in the case of rural land.

Either land may be used for “business or other purposes”.

If you and your spouse are eligible to be transferees, one of you may avail of this privilege. But if both of you prefer to be transferees, the total area you both acquire should not exceed the maximum fixed for a single transferee (i.e., 5,000 square meters in the case of urban land or 3 hectares in the case of rural land).

And if you already own urban or rural land – less than the fixed maximum areas - you are still entitled to be a transferee of additional urban or rural land which when added to those you already own shall not exceed said fixed maximum areas.

You may acquire not more than 2 lots which should be situated in different municipalities or cities but, again, the total land area thereof should not exceed the maximum areas fixed. This provision seems to mean that if you want to own more than 1 lot, you cannot own more than 2 and the other lot must be in a different municipality or city.

A transferee who has already acquired urban land is disqualified from acquiring rural land and vice versa. We take this to mean that the transferee has not yet disposed of the previously acquired land; otherwise, it seems the transferee can start from scratch.

Remember, the law speaks only of a transferee. If you already own more than 5,000 square meters of urban land or 3 hectares of rural land (prior to the existence of RA 8179), no one will take any property away from you but you cannot be a transferee of any more property since you already own more than the fixed maximum area.

What about Batas Pambansa 185[2]?

We note that there are several internet sites (even a Philippine embassy site ) which consider BP 185 valid alongside RA 8179. BP 185 limits the transferees to own “private land up to a maximum area of one thousand square meters, in the case of urban land, or one hectare in the case of rural land, to be used by him as his residence”. [emphasis supplied]

Since RA 8179 allows transferees to own land for “business or other purposes”, we opine that RA 8179 has superseded BP 185 by allowing transferees to own 5,000 square meters of urban land or 3 hectares of rural land areas for residence as well.

In fact, in the case of Matthews vs. Taylor (2009)[3] - where the Supreme Court acted upon “the validity of an Agreement of Lease of a parcel of land entered into by a Filipino wife without the consent of her British husband” - the Supreme Court cited that the “instances when aliens may be allowed to acquire private lands in the Philippines are:

a) By hereditary succession (Section 7, Article XII, Philippine Constitution).

b) A natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law (Section 8, Article XII, Philippine Constitution). Republic Act No. 8179 now allows a former natural-born Filipino citizen to acquire up to 5,000 square meters of urban land and 3 hectares or rural land, and he may now use the land not only for residential purposes, but even for business or other purposes.

c) Americans who may have acquired title to private lands during the effectivity of the Parity Agreement shall hold valid title thereto as against private persons (Section 11, Article XVII, 1973 Constitution).”

In said case, the Supreme Court clearly no longer sees BP 185’s 1,000 limit for urban land and 1 hectare limit for rural land as still applicable.

We have found no provision prohibiting ownership of lands for mixed uses so it seems the transferee may be able to purchase lands, say, one for business and the other for residence (keeping in mind the limitations in area and location).

^{^[1]} “An Act To Further Liberalize Foreign Investments, Amending For The Purpose Republic Act No. 7042, And For Other Purposes”, March 28, 1996.

^{^[2]}“An Act To Implement Section Fifteen Of Article Xiv Of The Constitution And For Other Purposes”, March 16, 1982.

^{^[3]}Philip Matthews vs. Benjamin A. Taylor and Joselyn C. Taylor, G.R. No. 164584, June 22, 2009.

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THE LONG AND WINDING ROAD (An example of Philippine bureaucracy and the Anti-Red Tape Act of 2007)

2011-07-26T10:13:00.008+08:00

By Siesta-friendly

It is hereby declared the policy of the State to promote integrity, accountability, proper management of public affairs and public property as well as to establish effective practices aimed at the prevention of graft and corruption in government. Towards this end, the State shall maintain honesty and responsibility among its public officials and employees, and shall take appropriate measures to promote transparency in each agency with regard to the manner of transacting with the public, which shall encompass a program for the adoption of simplified procedures that will reduce red tape and expedite transactions in government. (Sec. 2. Declaration of Policy, R.A. 9485 or the Anti-Red Tape Act of 2007)[1]

Too bad these inspired goals are not matched by most of the provisions of RA 9485 nor by the actions of the POEA (and possibly not a few other government agencies). Otherwise, we wouldn’t have had this recent article by Stella Ruth Gonzales, “Exit clearance: An OFW’s nightmare”[2] – where the new OFW recounts what she calls what could be “one of our worst encounters with government bureaucracy” after it took her 3 days just to get an Exit Clearance prior to her departure for work abroad - nor would we have heard more from the dozens of similar feedback at the end of her article.

OFW’s POEA nightmare

Ms. Gonzales’ ordeal starts with a 6.30 am arrival at the POEA just to get a referral form for a medical exam and a schedule for the pre-orientation departure seminar. Upon arrival, she was given a number only to be told to come back the next day.

She returned early again the next day but the relevant POEA counter would only entertain applicants well beyond 8 am. Add to that the surprise in finding out the only question posed to all applicants was: “Will your employer repatriate your remains if you die abroad?” She was lucky, she could answer “yes”, repatriation was part of her contract. Unknowing applicants who had no such clause in their contracts, had to go back to their employers or agencies to include the relevant provision in their contracts and line up again another day.

Knowing that the government will not spend for the repatriation of her remains, she was then given a medical exam referral form and her seminar schedule. But since she was already late for the morning-only seminar for the day, she had to return another day.

So as not to waste time, she opted to get the medical (physical and psychological) exam that day. To get same-day results, she had to go to Manila instead of a clinic near the POEA in Pasig.

Upon returning for the seminar on another day, she discovered seminar gems such as –

“the additional talk at the start and end of the lecture—from representatives of a bank and a telecoms company who spoke about their products. It was like watching a Manny Pacquiao fight on free TV in the Philippines where you had no choice but to bear the commercials.”

xxx

“[The lecturer] wasted our time by discussing his trip to the province the previous weekend, and the beauty pageant on TV the previous night. “Who was your candidate?” he asked one of the OFWs. When she could not give a ready answer, he said: “I liked the first runner-up. I think she gave the best answer to the question.” Then he proceeded to tell us what the contestant’s answer was.

He was trying to liven up his lecture with stories, but everybody was pressed for time. Some of the applicants had to go to the OWWA office for additional requirements. But no one could leave without the precious PDOS certificate. We were trapped.”

xxx

“The lecturer reminded us about how our employers abroad put a premium on time. “Time is gold,” said the lecturer, who arrived 15 minutes late, and ended his talk 20 minutes beyond the allocated time.“

Once she completed the requirements, “she ran to the POEA staff member who was going to take a look at my documents. It took more than an hour for them to check the contract (the same one they had previously checked), initial it and check their database whether my employer was on the blacklist. Was then told to have her fees assessed, “but the entire staff were about to take their lunch break. When I tried to ask the female staff member at the counter whether it would be possible for her to spare a few minutes to assess my fees, she glared at me. … The counters closed at exactly 12 p.m. They opened at 15 minutes past 1.” She eventually got her Exit Clearance.

The above is just a summary of her ordeal. To put salt on her wounds, she left the country without Immigration officers asking for her Exit Clearance.

Anti-Red Tape Act of 2007

The POEA cannot be excused from ignorance of the Anti-Red Tape Act of 2007. Its been 4 years since the law was enacted.

Provisions relevant to Ms. Gonzales’ ordeal should have been followed -

Information Billboards

Sec. 6. Citizen’s Charter - All government agencies including departments, bureaus, offices, instrumentalities, or government-owned and/or controlled corporations, or local government or district units shall set up their respective service standards to be known as the Citizen's Charter in the form of information billboards which should be posted at the main entrance of offices or at the most conspicuous place, and in the form of published materials written either in English, Filipino, or in the local dialect, that detail:

(a) The procedure to obtain a particular service;

(b) The person/s responsible for each step;

(d) The document/s to be presented by the customer, if necessary;

(e) The amount of fees, if necessary; and

(f) The procedure for filing complaints.

The mandatory requirement which is the “repatriation clause” should have been conspicuously published at the POEA. The computation of the fees should have also been posted.

No Lunch Breaks

Sec. 8 Accessing Frontline Services –

(e) Adoption of Working Schedules to Serve Clients - Heads of offices and agencies which render frontline services shall adopt appropriate working schedules to ensure that all clients who are within their premises prior to the end of official working hours are attended to and served even during lunch break and after regular working hours. [emphasis supplied]

Once the applicants arrive at the POEA, their papers should already be processed; they should not have been merely given a ticket to come back the following day.

And government services are not supposed to break for lunch.

The Implementing Rules of RA 9485 even provide that -

“… Offices and agencies may consider providing frontline services as early as seven (7) in the morning until as late as seven (7) in the evening to adequately attend to clients. The frontline services must at all times be complemented with adequate staff by adopting mechanisms such as rotation system among office personnel, sliding flexi-time, reliever system especially in peak times of the transaction, or providing skeletal personnel during lunch and snack time.“ (Sec. 3. Working Schedule, Rule VI.)

Public Assistance Desk

Confusion and questions – general time wastage - may be avoided by offering an initial assessment of requirements at the public assistance desk.

Sec. 8 Accessing Frontline Services –

(g) Establishment of Public Assistance/Complaints Desk - Each office or agency shall establish a public assistance/complaints desk in all their offices.

5-10 days for official action

Unfortunately, the only thing that the POEA might know about the Anti-Red Tape Act of 2007 is the period between 5-10 days for acting on transactions which may justify the 3-day wait just to get the Exit Clearance.

(1) All applications and/or requests submitted shall be acted upon by the assigned officer or employee during the period stated in the Citizen's Charter which shall not be longer than five working days in the case of simple transactions and ten (10) working days in the case of complex transactions from the date the request or application was received. Depending on the nature of the frontline services requested or the mandate of the office or agency under unusual circumstances, the maximum time prescribed above may be extended. For the extension due to nature of frontline services or the mandate of the office or agency concerned the period for the delivery of frontline services shall be indicated in the Citizen's Charter. The office or agency concerned shall notify the requesting party in writing of the reason for the extension and the final date of release for the extension and the final date of release of the frontline service/s requested.

Simple transactions (like issuing a referral form for a medical exam and scheduling a pre-orientation departure seminar) which may be actually be completed in a matter of minutes are thus allowed to remain pending for at least 5 days for the law has set a minimum of 5 days.

If only public servants realize and acknowledge that they are that – public servants with incomes funded directly from taxpayer money. Then they would focus on serving the public and making it easier for the latter to transact with them and obtain whatever they need from the government without unnecessary hassle. What’s the point in paying taxes?

Imagine OFWs needing Exit Clearances having gone home for a 1-2 week vacation. They will have to spend a good portion of their precious vacation time obtaining government papers. If they don’t have a POEA branch in their cities, that’s more time and money wasted.

President Noynoy Aquino often reminds the people of walking on the straight and narrow road. He never mentions the obstacles that the government itself puts on the road that prompts people to look for the shorter though crooked path.

[1] An Act To Improve Efficiency In The Delivery Of Government Service To The Public By Reducing Bureaucratic Red Tape, Preventing Graft And Corruption, And Providing Penalties Therefor, June 02, 2007.

[2] Gonzales, S.O. (2011, July 7). Exit clearance: an ofw’s nightmare. Retrieved from http://newsinfo.inquirer.net/21871/exit-clearance-an-ofw%E2%80%99s-nightmare

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CAM ON QUEZON CITY (Why Quezon City’s “no CCTV, no business permit” policy is unconstitutional)

2011-06-21T21:21:00.008+08:00

By Siesta-friendly

Several news articles last week reported Quezon City’s plans to “strictly implement the no-CCTV no business permit policy in line with the city’s peace and order campaign particularly against carnapping and kidnapping ... CCTVs will also be used by the city for disaster preparedness purposes …”.[1]

Before Quezon City enacts a law to that effect, they should find guidance from the Bill of Rights -

“No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. “ (Sec. 1, Article III Bill of Rights means, Philippine Constitution)

The Due Process and Equal Protection clauses above mean that if a government plans to restrict an individual or a class of individuals’ rights to life, liberty, property and equality, the restriction must be reasonable and not arbitrary and such individuals or classes must be treated in the same manner as others in similar conditions and circumstances

Should Quezon City be of the impression that they can proceed with their policy in its exercise of police power, the Supreme Court has several times upheld the doctrine that -

The “exercise of police power is subject to judicial inquiry and could be set aside if it is either capricious, discriminatory, whimsical, arbitrary, unjust, or a denial of the due process and equal protection clauses of the Constitution.”[2]

Equal Protection of the Laws

The Supreme Court, as recently as December 2010 in the consolidated cases declaring the unconstitutionality of the Truth Commission[3] - having been tasked to investigate corruption only during Gloria Arroyo’s administration - , reiterated the settled doctrine that to be valid, a law which denies protection to one class of subject “must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.”

By requiring only businesses to install CCTV cameras, Quezon City has denied protection to the former that other classes like individuals, residences, government agencies, non-profit entities enjoy since the latter classes are not similarly required.

The classification must rest on substantial distinctions

In the context of peace and order for which the CCTVs are apparently required, what is the substantial distinction between businesses and other entities that justifies Quezon City’s singling out businesses? Are residences and government offices free from crime? Do all businesses pose a significantly high crime risk than other entities? Quezon City has a high rate of carnapping. Are the carnap victims predominantly business owners or do the incidents mostly occur in business premises?

What is the relation of crime and disaster preparedness to business establishments which does not exist with other entities that only businesses are required to install CCTV cameras?

Let’s take an example of reasonable classification. Requiring banks to have CCTV cameras is not unreasonable because of the money and other valuables deposited therein, the interest by their depositors in the safety of their deposits and the banks’ easy accessibility to the general public. Banks are clearly substantially different from all other entities in any given city and may be justifiably required to raise their security by installing CCTV cameras in the interest of peace and order. Although in the interest of disaster preparedness … not so much.

The classification must be germane to the purpose of the law

What binds all businesses together that they should all be required, regardless of nature, purpose, size, location, or anything else, to install CCTVs in the interest of peace and order and disaster preparedness?

How crucial is it for a beauty parlor to have a CCTV camera in the pursuit of peace and order and disaster preparedness? What crimes and disasters in a carinderia would a CCTV camera frequently capture? What is so precious inside a bakery – or how disaster prone exactly is a bakery - that CCTV cameras must be installed? What threat to peace and order and disaster risk is being prevented by installing a CCTV camera in a Mr. Quickie shop?

What is it in all business establishments that attracts threats to peace and order and raises the risks of disaster that necessitate the installation of CCTV cameras in their premises, which other entities have not?

The classification applies equally to all members of the same class

“The mayor [Herbert Bautista] reminded business establishments, particularly the high-risk ones such as car dealership stores (both high-end and trade-ins), as well as schools, convenience stores, gasoline stations and banks to comply with the CCTV requirement or face non-renewal of their business permit.”[4]

If the mayor readily admits some businesses as high-risk, why then require all businesses to install CCTV cameras?

In the case of businesses that own shops, stalls and carts, where should the CCVTV cameras be installed, in the office or in each of their shops, stalls and carts or in all of them? Do all shops, stalls and carts in a mall need to have a CCTV camera each?

And in the near future when people realize that CCTV cameras do not substantially prevent crime – as frequent news reports of crimes captured by CCTV cameras (here and abroad) show and because criminals can so readily buy and put on ski masks – nor crucially alert people to disasters, what then? Should the whims of a city government be allowed to extend to a new law requiring all businesses to employ security guards prior to obtaining their business licenses? Whims can be so hard to suppress.

The job of peace and order preservation and disaster prevention belongs to the government. It is already unfair for any government to delegate that job, especially a first class city that should have enough funds to effectively accomplish such job. It becomes more unreasonable and arbitrary when the government singles out a class of subjects for purposes that affect other classes equally.

[1] Chavez, C.A. (2011, June 14). QC wants CCTV as tool to deter crimes and disasters. Retrieved from http://www.mb.com.ph/articles/322632/qc-wants-cctv-tool-deter-crimes-and-disasters

[2] Central Bank v. Court of Appeals, G.R. Nos. L-50031-32, July 27, 1981, 106 SCRA 143

[3] Biraogo v. The Philippine Truth Commission of 2010 (G.R. No. 192935) and Lagman, et al. vs. Executive Secretary, et al. (G.R. No. 193036), December 7, 2010, citing Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).

[4] Chavez, ibid.

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