LAWYERS: KEEP OUT (The Katarungang Pambarangay Law)

By Siesta-friendly

What do you call a law prohibiting lawyers from participating in a justice system? Promising?

Unfortunately, we do not have statistics on how effective and successful the informal justice system known as the “Katarungang Pambarangay” has been.  But the mere fact that lawyers are barred from the proceedings should be success enough.

Anyway, should you have any problem against someone, it is crucial to know the rules on the Katarungang Pambarangay, as you will read below.

General Rule

The general rule is that the Lupon Tagapamayapa[1] (Committee for Peace) of each barangay “shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes”.[2]  So, provided they do not fall under the exceptions, all disputes must first be submitted for possible conciliation at the barangay level, before any court or other government body can take jurisdiction.

Exceptions[3]

Naturally, there are cases that are best handled by the courts, the Office of the Ombudsman, the National Labor Relations Commission, the Securities and Exchange Commission, etc.  So we have exceptions to the general rule above, which are:

1. Where one party is the government, or any subdivision or instrumentality thereof;

2. Where one party is a public officer or employee and the dispute relates to the performance of his official functions;

3. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;

4. Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules];

5. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon;

6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding 1 year or a fine of over P5,000.00;

7. Offenses where there is no private offended party;

8. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following:

a.      Criminal cases where accused is under police custody or detention;

b.      Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf;

c.  Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and

d.      Actions which may be barred by the Statute of Limitations.
    

9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice;

10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) [Secs. 46 & 47, R. A. 6657];

11. Labor disputes or controversies arising from employer-employee relations [Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended], which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment];

12. Actions to annul judgment upon a compromise which may be filed directly in court [Sanchez vs. Tupaz, 158 SCRA 459];

13. Where the dispute involves members of the same indigenous cultural community, such dispute shall be settled in accordance with the customs and traditions of that particular cultural community, or where one or more of the parties to the aforesaid dispute belong to the minority and the parties mutually agreed to submit their dispute to the indigenous system of amicable settlement [Sec. 412 [c], R.A. 7160]

A court in which non-criminal cases not falling within the authority of the Lupon are filed, at any time before trial, may motu proprio refer the case to the Lupon concerned for amicable settlement. [Sec. 408 [g], 2^nd par.]

The courts are strict about these rules.  No complaint, petition, action, or proceeding involving any matter within the authority of the Lupon shall be filed or instituted directly in court or any other government office for adjudication, unless (1) there has been a confrontation between the parties before the Punong Barangay or the Pangkat, and that (2a) no conciliation or settlement has been reached as certified by the Lupon secretary or Pangkat secretary as attested to by the Lupon or Pangkat chairman or unless (2b) the settlement has been repudiated by the parties thereto.[4]

Cases filed in court without first going through barangay conciliation when required “may be dismissed upon motion of defendant/s … for failure to state a cause of action or prematurity”.[5]

Venue[6]

So exactly with which Lupon should one file a complaint?

1. Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the Lupon of said barangay.

2. Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complaint.

3. All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated.

4. Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located.

Objections to venue shall be raised in the mediation proceedings before the Punong Barangay (Lupon Chairman); otherwise, they are deemed waived.  Any legal question which may confront the punong barangay in resolving objections to venue may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling shall be binding.

Procedure[7]

Mediation by the Punong Barangay / Lupon Chairman

1. Upon payment of the appropriate filing fee (not less than P5.00 nor more than P20.00)[8], any individual who has a cause of action against another may complain, orally or in writing, to the Punong Barangay.

2. Upon receipt of the complaint, the Punong Barangay shall within the next working day summon the respondent(s), with notice to the complainant(s) for them and their witnesses, to appear before him not later than 5 days from date thereof[9] for mediation of their conflicting interests.  

3. The respondent shall answer the complaint, orally or in writing, by denying specifically the material averments of the complaint and/or alleging any lawful defense.  He may also interpose a counterclaim against complainant, a cross-claim against a co-respondent or a third-party complaint against one not yet a party to the proceedings.[10]

4. Upon successful conclusion of his mediation effort, the Punong Barangay shall reduce to writing in a language or dialect known to the parties the terms of the settlement agreed upon by them, have them sign the same, and attest to its due execution.[11]

5. If the Punong Barangay fails in his mediation efforts within 15 days from the first meeting of the parties before him, or where the respondent fails to appear at the mediation proceeding before the Punong Barangay[12], he shall set a date for the constitution of the Pangkat Tagapagkasundo[13] (Panel for Conciliation).

Conciliation by the Pangkat Tagapagkasundo

6. The Pangkat shall convene not later than 3 days from its constitution, on the day and hour set by the Punong Barangay, to hear both parties and their witnesses, simplify issues, and explore all possibilities for amicable settlement.  The Pangkat may also issue summons for the personal appearance of parties and witnesses.

If a party moves to disqualify any member of the Pangkat by reason of relationship, bias, interest, or any other similar grounds, the matter shall be resolved by the affirmative vote of the majority of the Pangkat whose decision shall be final. Should disqualification be decided upon, the vacancy shall be filled by drawing lots [See Sec. 404, R.A. 7160]. 

7. Respondent's refusal or willful failure to appear without justifiable reason before the Pangkat, as determined by the latter after notice and hearing, shall be a sufficient basis for the issuance of a certification for filing complainant's cause of action in court or with the proper government agency or office.[14]

8. The Pangkat shall arrive at a settlement or resolution of the dispute within 15 days from the day it convenes.  This period shall, at the Pangkat’s discretion, be extendible for another period which shall not exceed 15 days, except in clearly meritorious cases.

Informal but Orderly Proceedings[15]

The Punong Barangay and the Pangkat shall proceed to hear the matter in dispute in an informal but orderly manner, without regard to technical rules of evidence, and as is best calculated to effect a fair settlement of the dispute and bring about a harmonious relationship of the parties.

Proceedings before the Punong Barangay shall be recorded by the Lupon Secretary while those before the Pangkat shall be recorded by the Pangkat Secretary. The record shall note the date and time of hearing, appearance of parties, names of witnesses and substance of their testimonies, objections and resolutions, and such other matters as will be helpful to a full understanding of the case.

Public Proceedings[16]

All proceedings for settlement shall be public and informal but the Punong Barangay or the Pangkat chairman, as the case may be, may motu proprio or upon request of a party, exclude the public from the proceedings in the interest of privacy, decency, or public morals.

Personal Appearance; No Lawyers[17]

In all proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers. Total ban.  Sweet.

Sanctions for Failure to Appear[18]

In case a party fails to appear for mediation, the Punong Barangay / Pangkat Chairman shall set a date for the absent party/ies to appear before him to explain the reason for the failure to appear. 

If the Punong Barangay / Pangkat Chairman finds after hearing that the failure or refusal of the complainant to appear is without justifiable reason, he shall (1) dismiss the complaint; (2) direct the issuance of and attest to the certification to bar the filing of the action in court or any government office; and (3) apply with the local trial court for punishment of the recalcitrant party as for indirect contempt of court. 

In case of similar willful failure or refusal of the respondent to appear for mediation before the Punong Barangay / Pangkat Chairman (as may be applicable), the latter shall: (1) dismiss the respondent's counterclaim; (2) direct the issuance of and attest to the certification (i) to bar the filing of respondent's counterclaim in court/government office, and if already under conciliation, (ii) to file complainant's action in court/government office; (3) apply with the local trial court for punishment of the recalcitrant party as for indirect contempt of court; and (4) if still under mediation, the Punong Barangay shall set a date for the parties to appear before him for the constitution of the Pangkat.

The Punong Barangay shall apply, in similar manner, for the punishment of a recalcitrant witness who willfully fails or refuses to appear, as for indirect contempt of court.

Suspension of Prescriptive Period

While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing the complaint with the Punong Barangay.  The prescriptive periods shall resume upon receipt by the complainant of the certificate of repudiation or of the certification to file action issued by the Lupon or Pangkat Secretary.  Such interruption, however, shall not exceed 60 days from said filing of the complaint.

Repudiation of Settlement[19]

Any party to the dispute may, within 10 days from the date of the settlement, repudiate the same by filing with the Punong Barangay a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office. Failure to repudiate the settlement within the aforesaid time limit shall be deemed a waiver of the right to challenge on said grounds.

Settlement as Final Judgment[20]

The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court.  Except that in cases where the court motu proprio referred a non-criminal case to the Lupon which is not within the latter’s jurisdiction, the compromise settlement agreed upon shall first be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court.

Execution

The amicable settlement or arbitration award may be enforced by execution by the Lupon within 6 months from the date of the settlement.  After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.[21]

The secretary of the Lupon shall transmit the settlement or the arbitration award to the appropriate city or municipal court within 5 days from the date of the award or from the lapse of the 10-day period repudiating the settlement and shall furnish copies thereof to each of the parties to the settlement and the Punong Barangay.[22]

The Katarungan Pambarangay law is embodied in the Local Government Code and thus comes part of the government’s hopes for decentralization and local government empowerment and the aim of providing accessible and non-adversarial dispute resolution. And in the pursuit of these hopes and aims, lawyers are deemed an obstruction.

---

[1]  SEC. 399, R.A. 7160. Lupong Tagapamayapa. –

(a) There is hereby created in each barangay a lupong tagapamayapa, hereinafter referred to as the lupon, composed of the punong barangay as chairman and ten (10) to twenty (20) members. The lupon shall be constituted every three (3) years in the manner provided herein.

(b) Any person actually residing or working in the barangay, not otherwise expressly disqualified by law, and possessing integrity, impartiality, independence of mind, sense of fairness, and reputation for probity, may be appointed a member of the lupon.

xxx

(f) In barangays where majority of the inhabitants are members of indigenous cultural communities, local systems of es through their councils of datus or elders shall be recognized without prejudice to the applicable provisions of this Code.

[2]  Sec. 408, ibid.

[3]  Par. I, Administrative Circular No. 14-93,  “Guidelines On The Katarungang Pambarangay Conciliation Procedure To Prevent Circumvention Of The Revised Katarungang Pambarangay Law [Sections 399-422, Chapter Vii, Title I, Book Iii, R. A. 7160, Otherwise Known As The Local Government Code Of 1991]”, July 15, 1993.

[4]  Sec. 412, R.A. 7160

[5]  Par. IV, Administrative Circular No. 14-93.

[6]  Sec. 409, RA 7160.

[7]  Sec. 410, ibid.

[8]  Rule VI, Sec. 4, Katarungang Pambarangay Circular No. 1, “Katarungang Pambarangay Rules and Forms”, July 21, 1992

[9]  Rule III, Sec. 1 b (1), ibid.

[10]  Rule VI, Sec.5, ibid.

[11]  Rule III, Sec. 1 b (4), ibid.

[12]  Rule VI, Sec.8 a, 3^rd par., ibid.

[13]  Sec. 404, R.A. 7160. Pangkat ng Tagapagkasundo. –

(a) There shall be constituted for each dispute brought before the Lupon a conciliation panel to be known as the Pangkat ng tagapagkasundo, hereinafter referred to as the Pangkat, consisting of three (3) members who shall be chosen by the parties to the dispute from the list of members of the Lupon.

Should the parties fail to agree on the Pangkat membership, the same shall be determined by lots drawn by the Lupon chairman.

(b) The three (3) members constituting the Pangkat shall elect from among themselves the chairman and the secretary. The secretary shall prepare the minutes of the Pangkat proceedings and submit a copy duly attested to by the chairman to the Lupon secretary and to the proper city or municipal court. He shall issue and cause to be served notices to the parties concerned.

The Lupon secretary shall issue certified true copies of any public record in his custody that is not by law otherwise declared confidential.

[14] Rule VI, Sec.8 a, 3^rd par., Katarungang Pambarangay Circular No. 1.

[15]  Rule VI, Sec.5, ibid.

[16]  Sec. 414, ibid.

[17]  Sec. 415, ibid.

[18]  Rule VI, Sec. 8 b, 1, Katarungang Pambarangay Circular No. 1.

[19]  Rule VI, Sec. 14, ibid.

[20]  Sec. 416, R.A. 7160.

[21]  Sec. 417, ibid.

[22]  Sec. 419, ibid.

NEWER POST       |       PREVIOUS POST

Cat in the Act (Landmark conviction under the Animal Welfare Act)

By Siesta-friendly

There are 2 cats involved in this story. One is Tengteng, a month-old feline residing presumably within the UP campus and cared for by someone as evidenced by his leash and a few photos taken of him[1].  

 

And the other, Joseph Carlo Candare, a UP Physics student who tortured and killed Tengteng.  In the interest of fair exposure, below are pictures of Mr. Candare[2] –

The 2 fatefully met under gruesome details provided none other than by Mr. Candare himself in a blog entry aptly titled “I killed Schrödinger’s cat”.  The blog has been deleted but a snapshot of his blog entry reveals the relevant details below[3] –

That was in 2009.  PAWS (Philippine Animal Welfare Society) promptly filed a criminal complaint against Mr. Candare under the Animal Welfare Act (R.A. 8485, February 1998).

In a further show of remorselessness, Mr. Candare failed to show up at trial until a warrant of arrest was issued against him.

Anyway, below are the pertinent sections of RA 8485 pursuant to which Mr. Candare was charged -

Sec. 6. It shall be unlawful for any person to torture any animal, to neglect to provide adequate care, sustenance or shelter, or maltreat any animal or to subject any dog or horse to dogfights or horsefights, kill or cause or procure to be tortured or deprived of adequate care, sustenance or shelter, or maltreat or use the same in research or experiments not expressly authorized by the Committee on Animal Welfare.

 
The killing of any animal other than cattle pigs, goats, sheep, poultry, rabbits, carabaos, horses, deer and crocodiles is likewise hereby declared unlawful except in the following instances:

(1)   When it is done as part of the religious rituals of an established religion or sect or a ritual required by tribal or ethnic custom of indigenous cultural communities; however, leaders shall keep records in cooperation with the Committee on Animal Welfare;

(2)   When the pet animal is afflicted with an incurable communicable disease as determined and certified by a duly licensed veterinarian;

(3)   When the killing is deemed necessary to put an end to the misery suffered by the animal as determined and certified by a duly licensed veterinarian;

(4)   When it is done to prevent an imminent danger to the life or limb of a human being;

(5)   When done for the purpose of animal population control;

(6)   When the animal is killed after it has been used in authorized research or experiments; and

(7)   Any other ground analogous to the foregoing as determined and certified licensed veterinarian.

In all the above mentioned cases, including those of cattle, pigs, goats, sheep, poultry, rabbits, carabaos, horses, deer and crocodiles the killing of the animals shall be done through humane procedures at all times.

 
For this purpose, humane procedures shall mean the use of the most scientific methods available as may be determined and approved by the committee.

 
Only those procedures approved by the Committee shall be used in the killing of animals.

Sec. 8. Any person who violates any of the provisions of this Act shall, upon conviction by final judgment, be punished by imprisonment of not less than six (6) months nor more than two (2) years or a fine of not less than One thousand pesos (P1,000.00) nor more than Five thousand pesos (P5,000.00) or both at the discretion of the Court. If the violation is committed by a juridical person, the officer responsible therefor shall serve the imprisonment when imposed. If the violation is committed by an alien, he or she shall be immediately deported after service of sentence without any further proceedings.

Its now 2011 and, finally, there’s a conviction against an animal torturer not engaged in the trade of animals or animal meat.  Mr. Candare is just a college student, albeit with what appears to be psychopathic tendencies.

In lieu of imprisonment, Mr. Candare was ordered to pay a P1,000 fine and to do 6 months of community service for PAWS.  Pretty light it seems considering his self-confessed serial killing, the gruesomeness of his work and his lack of empathy. 

Mr. Candare got all of Tengteng’s nine lives while he has the chance to start a new one for himself.  We look forward to the psychiatric help he is reported to be getting as a result of his crime.  Studies have long been made on the link of animal cruelty and full-blown psychopathy.  No one wants another landmark case, this time of a serial killer of a more advanced animal.  

---

[1]  Photos courtesy of http://www.thepetitionsite.com/102/Justice-for-Tengteng/

[2]  Photos courtesy of http://www.thepetitionsite.com/102/Justice-for-Tengteng/

[3]  Snapshot courtesy of http://www.vincegolangco.com/wp-content/uploads/2009/04/cat-serial-killer.jpg

NEWER POST       |       PREVIOUS POST

FOR YOUR EYES ONLY: Anti- Photo and Video Voyeurism

By Obiter07

No longer can voyeurs and peeping toms with a penchant for recording what they see claim that no law prohibits their activities.  Republic Act No. 9995 is “AN ACT DEFINING AND PENALIZING THE CRIME OF PHOTO AND VIDEO VOYEURISM, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES” (July 2009).   With the prevalence of cellphone and other small cameras, Congress has seen fit to punish those who violate the privacy of others through these means.

The Prohibited Acts are as follows:

“(a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public[1] (sic) area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;

(b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;

(c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or

(d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.

The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein. (Section 4)” [Emphasis supplied]

The act of taking video or photo coverage of sexual acts and of private parts without consent has been made a crime.  So is copying, selling, distributing, publishing or broadcasting the same.  And this is still punishable even if the ostensible victim has consented to the coverage:

(d) "Photo or video voyeurism" means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter's consent, under circumstances in which such person/s has/have a reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such person/s.”(Section 3, Definition of Terms) [Emphasis supplied]

Consent to the coverage and written consent to its further distribution or showing is required in order to stay clear of this law.  But it is another matter whether consent can be a defense to charges of pornography or indecency. This would be covered by the Revised Penal Code, specifically ARTICLE 201 which covers “Immoral doctrines, obscene publications and exhibitions, and indecent shows.”[2]

There is a reasonable expectation of privacy where a person believes “that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place” (Section 3 (f)).  Hence, it doesn’t matter whether you go naked in a motel, in your backyard or even a secluded spot in a public area, you may be “covered” (pun intended) by the law.  The paparazzi will have to behave accordingly.

A violator faces the “penalty of imprisonment of not less than three (3) years but not more than seven (7) years and a fine of not less than One hundred thousand pesos (P100,000.00) but not more than Five hundred thousand pesos (P500,000.00), or both, at the discretion of the court xxx.”   If the “violator is a juridical person, its license or franchise shall be automatically be deemed revoked and the persons liable shall be the officers thereof including the editor and reporter in the case of print media, and the station manager, editor and broadcaster in the case of a broadcast media. If the offender is a public officer or employee, or a professional, he/she shall be administratively liable. If the offender is an alien, he/she shall be subject to deportation proceedings after serving his/her sentence and payment of fines. (Section 5)”

The only exception is given to peace officers “authorized by a written order of the court, to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime  (Section 6).”   Any record, photo or video in violation of the foregoing shall be inadmissible in evidence in any proceeding (Section 7).

The law defines the private area of a person to mean “the naked or undergarment clad genitals, public (sic) area, buttocks or female breast of an individual.” With respect to breasts, it includes “any portion of the female breast.”

It would be interesting to see whether wardrobe malfunctions would be covered by this law.  All the elements would still be present, since there would be video coverage of private parts without consent, albeit accidental, and the broadcast of the same. 

The law speaks of “any portion of the female breast.”  Would a televised shot of a starlet’s cleavage and nothing more be punishable under the law?    It would seem so and this renders the statute vulnerable to Constitutional attack for being vague or too broad. 

The actual application of this law should not take long in coming. There has been one incident where a man was able to record through his cellphone the intimate acts of a couple in a Manila mall’s comfort room.  He thereafter sought ransom in exchange for not posting the video on the net.[3]  And a gym instructor was recently apprehended for “filming upskirt videos in a Quezon City supermarket” using his mobile phone.[4]

It looks like you may stop and look, provided you don’t record anything for posterity or notoriety, as the case may be, if you have no wish to run afoul of this law.  In fine, this Act says that whatever you get to see is for your eyes only, no one else’s.  Yet there is still no escape as you may still be charged with the offense of “unjust vexation”[5] under the Revised Penal Code, the standard complaint against peeping toms.[6]

---

[1] All copies thus far on the net use the word “public” when it can be inferred that the correct term is “pubic.”

[2] ARTICLE 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

(2) (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculptures or literature which are offensive to morals. (As amended by Presidential Decree Nos. 960 and 969,

July 24, 1976.)

[3] Javier, Journal Online 2008-09-15 as cited in http://article.wn.com/view/2008/09/15/Sex_scandal_at_mall_CR/

[4]Fitness instructor arrested for capturing upskirt videos, SPOT – Thu, May 5, 2011 http://ph.news.yahoo.com/fitness-instructor-arrested-capturing-upskirt-videos-081100433.html

[5] ARTICLE 287. Light coercions. — Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos.
Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging

from 5 to 200 pesos, or both.

[6] Manila clamps down on peeping toms By Sandy Araneta (The Philippine Star) Updated June 05, 2010

NEWER POST       |       PREVIOUS POST

PARK AND PAY: Liability of hotels for guest’s vehicle

By Obiter07

In “DURBAN APARTMENTS CORPORATION doing business under the name and style of City Garden Hotel vs. PIONEER INSURANCE AND SURETY  CORPORATION,” G.R. No. 179419  (January 12, 2011),  the Supreme Court passed upon the liability of hotels for providing valet parking to guests.

This arose after a hotel guest, and Pioneer’s insured, checked into the City Garden hotel in Makati. The hotel’s parking attendant and co-defendant got the keys to the guest’s vehicle and parked it an adjacent lot owned by a third party.  The guest was subsequently awakened so as to be advised that his car had been taken. The guest made the necessary reports and thereafter filed a claim for insurance with Pioneer which paid the same as indemnity for the vehicle’s loss.  Pioneer alleged that the loss was an offshoot of the hotel’s negligence and accordingly filed a claim by means of subrogation, against the hotel and its parking valet. It was established that there was a previous similar incident and yet no “no necessary precautions were taken to prevent its repetition xxx”.  Pioneer argued that the hotel was “was wanting in due diligence in the selection and supervision of its employees particularly its parking valet.”

On a procedural note, Pioneer was allowed to present evidence ex parte in view of the hotel’s failure to file a pre-trial brief and to appear at pre-trial.

The Hotel argued that the insured was not a guest of the hotel but a visitor therein, that its valet did not get his keys but it was the insured who requested him to find a space wherever one was available, that valet parking was provided for convenience of its customers and that it was a special privilege that was given to the insured.  The vehicle was taken without using the key which was even turned over to the owner. Its valet even tried to run after the carnappers to no avail.

 The guest testified that he drove his vehicle in front of the hotel where the parking attendant approached and asked him for his key, and issued a “valet parking customer’s claim stub.”  He then checked in at the hotel with a companion.  At around 1 a.m., he was advised of the carnapping incident.   An adjuster testified that based on his investigation, the hotel would assist guests in parking, and with only 12 parking slots, entered into an agreement with an adjacent bank to use the latter’s space at night. He discovered that a van had been carnapped from the same lot barely a month before.

The lower court ruled in favor of Pioneer and ordered Durban to pay the “sum of P1,163,250.00 with legal interest thereon from July 22, 2003 until the obligation is fully paid and attorney’s fees and litigation expenses amounting to P120,000.00.”   This was affirmed by the Court of Appeals.

The High Court upheld the ruling that the hotel was in “default for failure to appear at the pre-trial conference and to file a pre-trial brief, and thus, correctly allowed respondent to present evidence ex-parte.”  It also affirmed the finding that it was liable for the loss of the vehicle. The procedural aspect will not be dealt with in detail here.

Despite the finding of default, the Supreme Court emphasized that “defendant’s (petitioner’s) preclusion from presenting evidence during trial does not automatically result in a judgment in favor of plaintiff (respondent). The plaintiff must still substantiate the allegations in its complaint.” 

It found that the allegations of Pioneer in the complaint were substantiated, “i.e., a contract of necessary deposit existed between the insured xxx and petitioner. On this score, we find no error in the following disquisition of the appellate court:

[The] records also reveal that upon arrival at the City Garden Hotel, See gave notice to the doorman and parking attendant of the said hotel, x x x Justimbaste, about his Vitara when he entrusted its ignition key to the latter. x x x Justimbaste issued a valet parking customer claim stub to See, parked the Vitara at the Equitable PCI Bank parking area, and placed the ignition key inside a safety key box while See proceeded to the hotel lobby to check in. The Equitable PCI Bank parking area became an annex of City Garden Hotel when the management of the said bank allowed the parking of the vehicles of hotel guests thereat in the evening after banking hours. “

          

Interesting is the finding that the bank’s parking area was deemed an “annex” to the hotel.  A hotel’s use of an adjacent lot appears to subject the same to its control.  

The Court cited Article 1962, in relation to Article 1998, of the Civil Code:

           

“Art. 1962. A deposit is constituted from the moment a person receives a thing belonging to another, with the obligation of safely keeping it and returning the same. If the safekeeping of the thing delivered is not the principal purpose of the contract, there is no deposit but some other contract.

Art. 1998. The deposit of effects made by travelers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to them, or to their employees, of the effects brought by the guests and that, on the part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects.”

The insured deposited the vehicle for safekeeping with the hotel, through its employee.  This employee issued a claim stub to the insured. The contract of deposit was perfected from the delivery of the vehicle, when the keys were handed over to the hotel’s employee, and which he “received with the obligation of safely keeping and returning it.”   

This could conceivably be used as basis for users of mall and other public parking lots to claim indemnity for loss or damage to their vehicles.  It would be interesting to see if the practice of placing disclaimers of liability in the parking stub, as well as in signages, would be upheld by the courts as binding on the users. It does stand to reason that when you are made to park and pay, parking lot providers owe a degree of care to insure your vehicle is kept safe and sound.  And if they fail to adhere to this standard, then they should be sorry they didn’t, as in this case.

NEWER POST       |       PREVIOUS POST