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

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

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

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

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

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

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

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

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

3. 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.
4. 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.
5. 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:

1. Office of the Mayor
2. Office of the Barangay Captain
3. NCDA or its regional counterpart
4. DSWD offices
5. Participating organizations with Memorandum of Agreements with the DOH
6. DOH Online Registration – 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:

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

xxx

VI. VALIDITY AND RENEWAL OF THE PIC

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

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

NEWER POST       |       PREVIOUS POST

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

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.”

NEWER POST       |       PREVIOUS POST

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

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

NEWER POST       |       PREVIOUS POST

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

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.

NEWER POST       |       PREVIOUS POST

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

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;

(c) The maximum time to conclude the process;

(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

NEWER POST       |       PREVIOUS POST