Proposed bill (01): Requiring the publication of laws, deeds, orders, notices, etc. on the Internet instead of newspapers, and creating a government office and website for this purpose

The publication in newspapers of laws, deeds, orders, notices, issuances, etc. are required by our Republic Acts, the Rules of Court, rules and regulations of government offices like the SEC, POEA, Insurance Commission, among others. Examples of matters required to be published in newspapers are:

• Deeds of extrajudicial settlement of estate before they can be filed with the BIR or the Register of Deeds;


• Laws, before they can become effective under Article 2 of the New Civil Code of the Philippines, as amended by Presidential Decree No. 200;


• Notices of dissolution of corporations as required by the Securities and Exchange Commission;


• Court orders on a petition for adoption under RA 8552, petition for issuance of a duplicate copy of a certificate of title in case of loss, etc.;


• Annual listing by the Department of Health of drugs and their generic names under Section 37 of RA 9502 Cheaper Medicines Act of 2008, and order of the President of the Philippines imposing maximum retail prices on drugs and medicines under Section 30; and


• Notice of sale of delinquent properties by the various LGUs.

Privately owned newspapers have been generating tremendous revenues from the publication of these notices, orders, deeds, etc. One woman told me that she paid more than Php 50,000.00 for the publication of the court order in her petition for adoption. Some newspapers charge by the line or by column inch. To maximize their revenues, these newspapers often print the orders and notices in very small font size. Some newspapers exist solely to earn money through the publication of these orders and notices. I handled two cases where the required publication was done (through a raffle conducted by the Office of the Clerk of Court) in newspapers whose offices were located in a rundown building and a residential house.

Some unscrupulous individuals choose to publish deeds, orders, etc. in small newspapers. Examples of these individuals are heirs who want to defraud other heirs, and business owners who publish their companies’ notice of dissolution in these small newspapers in order to escape their liabilities to creditors.

This proposed bill seeks to create a government office that will maintain a website where these laws, notices, orders, deeds, etc. will be published instead of in newspapers. The advantages of creating this government office and website are:

1. Revenues from the publication of these laws, notices, orders, deeds, etc. will go to the national government instead of a few, privately-owned newspapers.


2. Previously, Article 2 NCC provided that laws to become effective must first be published in the Official Gazette (published by the National Printing Office). PD No. 200 amended Art. 2 back in 1987, noting that the Official Gazette is published erratically and has limited readership; on the other hand, newspapers of general circulation are more easily available, come out regularly, and have a wider readership.
   
   That was in 1987. Publication in newspapers of general circulation has now become outdated in view of the worldwide reach and easy availability of the Internet. According to the Internet World Stats website, as of last year, 29,700,000 Filipinos (or nearly 30% of the total population) use the Internet. According to a 2008 study by Yahoo! and Nielsen, more Filipinos, especially the younger population, are favoring the Internet, more than television and print. Readership of newspapers showed a decline from 19 to 15 percent between 2007 and 2008. Magazine readership also went down from 16 percent in 2007 to just seven percent in 2008. (As you may have read, the iconic Newsweek Magazine is now a completely online magazine.)


3. The legal costs for the public – litigants, applicants, etc. – will be drastically reduced. The government office and website will create jobs for computer programmers, encoders, etc. Notaries-public can also be employed to issue the required affidavit of publication.


4. Anyone in the world can easily check whose estate is being extra-judicially settled, what corporation is being dissolved, and so on. The website can be designed so that these orders, notices, issuances, etc. can be posted, cross-referenced and archived in various ways – alphabetically, chronologically, topically, and geographically.

The government office can be created as an (1) independent office, or (2) attached agency under the Office of the President or the Department of Justice.

Notes:

(1) The Philippine government portal is www.gov.ph. The portal, under PNoy’s administration, has been renamed and redesigned as the “Official Gazette”. Using this name creates confusion; some people think that the Official Gazette mentioned in Article 2 NCC and in PD No. 200 is no longer a print publication. But instead of creating a new website, the Philippine government portal can be used as the website where laws, orders, notices, issuances, etc. are published.

(2) Some court orders are published in newspapers of general circulation. For example, when a respondent in a declaration of nullity of marriage case cannot be located by the court sheriff, the Family Court orders that the petition be published in a newspaper.

Our 1987 Constitution gives the Supreme Court authority to issue rules for legal practice and pleading. My suggestion is for the Supreme Court to require orders, notices, summons, etc. of lower courts to be published in its website, rather than in privately-owned newspapers. This will generate revenue for the Supreme Court and at the same time drastically reduce legal costs for litigants.

Heirs and inheritance (Part 15): Who inherits from a man or woman who died single and with no last will?

Situation 1: The man or woman who died single has living (a) legitimate parents or ascendants – grandparents, or great-grandparents, and (b) siblings, but with no illegitimate children.

Articles 985, 986, and 987 of the New Civil Code of the Philippines (NCC) are the governing laws in this situation.

Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.

Art. 986. The father and mother, if living, shall inherit in equal shares.

Should one only of them survive, he or she shall succeed to the entire estate of the child.

Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit.

Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita.

[1] Only the man or woman’s parents or ascendants (whether paternal or maternal) will inherit; the siblings (the “collateral relatives” in Art. 985) are excluded.

[2] Based on the principle “nearer excludes farther”, parents will exclude the grandparents from inheriting, and grandparents will exclude great-grandparents.

Situation 2: The man or woman who died single has no living ascendant, but is survived by (a) siblings, and (b) illegitimate children.

Articles 988, 989, and 990 NCC are the governing laws in this situation.

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation.

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent.

[1] Only the illegitimate children will inherit; the siblings are excluded from inheriting.

[2] If any of the illegitimate children had died earlier, their own children will inherit by right of representation.

Situation 3: The man or woman who died single has living (a) legitimate ascendants like parents or grandparents, (b) siblings, and (c) illegitimate children.

Article 991 NCC is the governing law in this situation.

Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

[1] Only the ascendants and the illegitimate children will inherit; the siblings are excluded.

[2] Proportion: 50% of the estate to be divided among the illegitimate children; 50% to be divided among the surviving ascendants.

[3] Based on the principle “nearer excludes farther”, parents will exclude the grandparents from inheriting, and grandparents will exclude great-grandparents.

Situation 4: The man or woman who died single is illegitimate, and is survived by (a) siblings, and (b) either or both biological parents.

Article 993 NCC is the governing law in this situation.

Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child’s filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike.

[1] Only the biological parents will inherit; they will exclude the man or woman’s siblings from inheriting.

[2] In a lot of situations, the illegitimate child is raised and supported by only one parent. If you are an illegitimate child, how can you prevent the other parent from inheriting under Article 993? You must execute a last will disinheriting that parent under Article 920 NCC.

Situation 5: The man or woman who died single has (a) no living ascendants, (b) no illegitimate children, but is survived by (c) brothers or sisters – whether full blood or half blood, and (d) legitimate nephews or nieces.

Articles 1003, 1004, 1005, 1006, 1009, and 1010 NCC are the governing laws in this situation.

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the decedent’s brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

Art. 1007. In case brothers and sisters of the half blood, some on the father’s and some on the mother’s side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.

Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood.

[1] Brother and sisters of the full blood are entitled to double the share of brothers and sisters of the half blood (Art. 1006).

[2] Please read my post titled “Can nephews and nieces inherit from their unmarried uncles or aunts?”

Situation 6: The man or woman who died single has no living (a) ascendants, (b) illegitimate children, (c) brothers or sisters, (d) nephews or nieces, but is survived by (e) collateral relatives like uncles or aunts, and cousins.

Articles 1009 and 1010 NCC are the governing laws in this situation.

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

[1] Principle of “nearer excludes farther” applies; the relative nearer in degree will exclude the relative farther in degree.

[2] Children of first cousins are not entitled to inherit by right of representation.

Situation 7: The man or woman died single with no living parents or ascendants, siblings, nephews or nieces, or with no qualified collateral relatives.

The State will inherit the whole estate under Articles 1011 to 1014 NCC.

Kris Aquino and James Yap cannot adopt Bimby jointly or sequentially; only one of them can adopt Bimby

Several days ago, Kris Aquino revealed in a Boy Abunda interview that her marriage to James Yap has been declared void by a Quezon City court. Kris also revealed that, for purposes of inheritance, she is planning to adopt Bimby and her other illegitimate son, Josh.

Reason why Baby James is illegitimate

Based on misinformation, some people in Internet chat rooms and in Facebook are saying that all children born in a void marriage are illegitimate. We must distinguish:

[1] If a marriage is declared void because of Article 36 of the Family Code (“psychological incapacity”), then a child is considered legitimate under Article 54. The article states:

Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

[2] The court declared Kris and James’s marriage void because of Article 35 of the Family Code (“lack of authority of the solemnizing officer”). As a consequence, Bimby, better known as “Baby James”, is illegitimate.

On the other hand, Josh is illegitimate because his parents, Kris and Philip Salvador, were not married.

Please read my article “Legal lessons from the Kris Aquino - James Yap breakup: legal separation, annulment, declaration of nullity, essential and formal requisites of marriage”.

Is the consent of the father of an illegitimate child required in adoption? Section 9, paragraph (b) of RA 8552 states that the written consent of the biological parent/s is necessary. UP College of Law professor Danilo L. Concepcion in his article “Domestic Adoption: Law and Procedure” (IBP Journal, March 2009, Vol. 34, No. 1) states that the reason why RA 8552 requires such consent is that their parental authority over the child (the prospective adoptee) will be terminated. Several women have e-mailed about this kind of situation. Either they do not know where the biological father of their illegitimate children is or the father is making things difficult for them. One woman even told me that the biological father asked her for money in exchange for his written consent. Prof. Concepcion argues (and I agree with him) that since an illegitimate child is under the sole parental authority of the mother under Article 176 of the Family Code, then the consent of the biological father is not necessary. Prof. Concepcion states that the problem is with the wording of the law. He says that instead of “biological parent/s” the law should have used “legal parent/s” instead.

Why should an unwed mother adopt her own child?

To a lot of Filipinos, Kris’s plan to adopt Baby James and Josh doesn’t make sense. Well, let me explain.

Legally speaking, the relationship between Kris and her children, or between any unwed mother and her child, for that matter, is illegitimate. In order for an unwed mother to legitimize her relationship with her illegitimate child, she has to file a petition under RA 8552, our domestic adoption law.

What if an unwed mother gets married subsequently to the biological father?

The legal remedy would not be adoption under RA 8552 but legitimation under Articles 177 to 182 of the Family Code (that is, if there were no legal obstacles when the child was conceived or born).

What if an unwed mother gets married to a man (not the biological father) who wants to adopt her child?

RA 8552 provides that husband and wife must adopt jointly. In this situation, the result would be (1) the relationship between the mother and the child will become legitimate, and (2) the man will acquire parental authority over the child.

The problem in this situation is when the biological father refuses to give his consent to the adoption. As I explained in my article on adoption, RA 8552 requires the consent of the biological father.

February 2011, I wrote to more than a dozen members of Congress asking them to consider filing a bill clarifying or amending RA 8552 so that the biological father’s consent will no longer be necessary. It’s now February 2012 and I still have not received any reply from these members of Congress.

Instead of waiting for a law clarifying or amending RA 8552, a mother or her husband can file a petition for declaratory relief before a competent court asking that the term “biological parent/s” be interpreted to mean “legal parent/s”.

If Kris adopts Bimby, will James Yap later on be able to adopt him?

No. Both the Family Code and RA 8552 state that, as a rule, a person who has already been adopted cannot be adopted again. The Family Code states it negatively while RA 8552 states it positively. Here’s the comparison:

Article 187, Family Code

Section 8, RA 8552

The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded.

Who May Be Adopted. — The following may be adopted: (a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or (f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s).

Can Kris adopt Bimby without the consent of James Yap?

This issue is very interesting. RA 8552 does provide that an unwed mother can adopt her own child to raise the child’s status to that of a legitimate child. But, as I discussed above, RA 8552 also provides that the biological father’s consent is necessary. The issue of consent most often arises when the mother gets married and her husband wants to adopt her child. In this situation, courts require that the prospective adopter present the notarized affidavit of consent of the biological father.

But if Kris wants to adopt Bimby by herself, would she still need James’s consent? Kris will do a lot of women a big favor if she goes ahead with the adoption without asking for James’s consent. Perhaps then, if James refuses to give his consent, the issue can reach the Supreme Court.

Can Kris and James Yap jointly adopt Bimby?

No. RA 8552 and the Family Code speak of “joint adoption” by husband and wife.

By invoking the “best interest of the child doctrine”, can Kris and James file for Bimby’s adoption at the same time and in the same petition?

This novel and interesting possible remedy faces both practical and legal problems:

[1] Right now, James Yap only has visitation rights over Bimby. If he is able to adopt Bimby, he will have parental authority over Bimby. Will Kris agree to James being able legally to decide on all matters relating to Bimby?

[2] The Family Code speaks of parental authority in several ways:

• an unwed mother’s exclusive parental authority over her child;
• the spouse’s joint parental authority over their children;
• the parental authority of a man and woman whose marriage has been declared void because of Article 36;
• the parental authority of a man or woman whose spouse has died;
• substitute parental authority by grandparents;
• special parental authority of a school, its administrators, and teachers.

As you can see, the Family Code does not speak of parental authority by two unmarried persons over their common child.

If Kris adopts Baby James, will he later on be able to inherit from PNoy and the other Aquino siblings?

No. The legal effects of adoption, like the right to inherit, only apply to Kris and Baby James.

Should Kris adopt Bimby and Josh for purposes of inheritance?

It depends on whether Kris wants to get married again and have children with her husband.

[1] If Kris gets married again and has children with her husband, then she should adopt Baby James and Josh. Why? So that Article 176 of the Family Code will not apply. Under Article 176, the legitime of an illegitimate child is only 50% of what a legitimate child is entitled to. If Kris adopts Baby James and Josh, they will be able to inherit from her as legitimate children.

[2] If Kris does not plan to get married again, then she does not have to adopt Baby James and Josh. Why? Because Baby James and Josh are already protected financially by the provisions on intestate succession under the New Civil Code of the Philippines (NCC).

If Kris dies without a last will, then under Article 988 of the NCC, Baby James and Josh will inherit all of her estate. Since her parents Ninoy and Cory are dead, Baby James and Josh are her only compulsory heirs. The NCC excludes PNoy and the other siblings from inheriting from Kris. Please read my article “Heirs and inheritance (Part 3): Rights of illegitimate children when their parent dies without a last will”.

Another alternative for Kris in providing financially for Baby James and Josh is for her to execute a last will under Article 901 of the NCC; she can designate all of the so-called “free portion” to Baby James and Josh.

300,000+ visitors and counting: Thanks for browsing this blog

I started this blog October 30, 2005 and last week, my website tracker (Sitemeter.com) reported that some 300,000+ visitors from 81 countries have now browsed this site.

The numbers are gratifying for any blogger but they do not really represent the number of people who have actually or beneficially used this blog. We have to consider factors such as bounce rates, time spent on site, number of pages viewed, etc. Also, I use three trackers: Google Analytics, Sitemeter and Bravenet. Due to the differences in the way these trackers work, Analytics reports the highest figure while Bravenet reports the lowest.

The service I provide in this blog and in my Family Matters website (which has now reached 225,000+ visitors from 93 countries) is free legal information and Biblical counseling. As I told one person who e-mailed me, what is legal is not always Biblical, and what is Biblical is not always legal. In my website and blogs however, what is Biblical will always take precedence.

Do not depend on “legal information” found in chat rooms or online forums

Despite this milestone for this blog, three things sadden me:

One, I have stumbled upon chat rooms or online forums for OFWs, single parents, etc. and I am amazed at the tremendous amount of misinformation about legal matters I found in these forums. The problem is that people in these chat rooms, rather than inquiring from lawyers, rely on each other and on people who pretend to know the law. It does not matter whether a person has gone to law school or does good research on legal topics. Answering people’s questions about legal matters is considered as “practice of law” (as the Supreme Court ruled in the case involving the late Sen. Rene Cayetano and former COMELEC chairman Christian Monsod). The practice of law is reserved only for those who have passed the bar exams and are in good standing with the Integrated Bar of the Philippines.

Some people in chat rooms and online forums also copy and paste from my blog posts without giving any credit. For example, portions of my post “Can nephews and nieces inherit from their grandparents, unmarried aunts or uncles?” were posted verbatim without any attribution in an online forum. (Click the image to the left so you can compare my blog post and what was posted in the forum.)

If you do have legal questions, you should inquire from lawyers directly or from government offices. I have listed in a tab below this blog’s title graphic the contact information of government offices where you can get free legal assistance. For example, you can ask for free legal help from the Department of Justice Action Center (DOJAC). It acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try asking for free legal help or information from the following:

1. Integrated Bar of the Philippines (IBP) chapter offices in your town or city, usually located in the Hall of Justice
2. OLA (Office of Legal Aid) of the UP College of Law; Room 107, Malcolm Hall, University of the Philippines Diliman, Quezon City, 1101; Tel. No. 927-6260; Trunkline: 920-5514 local 120, 121; Telefax: 920-5514 loc. 106; Office Hours: 8:00 am - 12:00 pm; 1:00 pm - 5:00 pm
3. Legal Aid Bureau of the San Beda College of Law in Mendiola, Manila
4. CJ Roberto Concepcion Legal Aid Clinic of the UST Institute of Civil Law, Espana, Manila; contact number: local 8349, direct 732-3045 (main UST trunklines 406-1611)
5. Sebastinian Office of Legal Aid, San Sebastian College Institute of Law; contact tel. no. 734-8931 local 312
6. Commission on Human Rights chapter offices
   

Two, the most visited page of this blog is that on adultery, concubinage, and psychological violence. The other pages with a high number of visits are those dealing with annulment or declaration of nullity of marriage, entertainer Amy Perez’s failed petition to have her marriage to Brix Ferraris declared null and void, and custody battles over children.

Three, there are more people who visit this blog rather than my Salt and Light blog on how to build strong relationships, marriages and families. Compared to this blog, my SL blog is limping along with only 51,000+ visitors since December 2005. It seems that there are more people who want to know about how to end their marriage than people concerned about building stronger marriages.

I remember Valentine’s Day five years ago. I received an e-mail from a woman, competent and highly successful in her profession. The problem was, her professional success had led to the breakdown of her marriage because her husband had become totally insecure. The question she desperately asked me was, “Is there hope for my marriage?” I spent the whole afternoon of that Valentine’s Day answering the e-mail, assuring her that yes, there was still hope for her marriage.

My hope is that more people will browse my Salt and Light blog and learn how to reclaim their marriage and rebuild their family. Some of my favorite articles are Lessons in love and life from Miriam Quiambao, Emotional word pictures as a communication tool for increasing intimacy between husbands and wives, and Men are terrible mind readers ...



I also hope that that those of you going through various marital difficulties will try to get hold and watch Kirk Cameron's movie on relationships; you can watch the YouTube trailer above. (Read more About FIREPROOF; surf to the FIREPROOF blog).

About FIREPROOF, the movie

At work, inside burning buildings, Capt. Caleb Holt lives by the old firefighter's adage: Never leave your partner behind. At home, in the cooling embers of his marriage, he lives by his own rules.

Growing up, Catherine Holt always dreamed of marrying a loving, brave firefighter...just like her daddy. Now, after seven years of marriage, Catherine wonders when she stopped being "good enough" for her husband.

Regular arguments over jobs, finances, housework, and outside interests have readied them both to move on to something with more sparks.

As the couple prepares to enter divorce proceedings, Caleb's father challenges his son to commit to a 40-day experiment: "The Love Dare." Wondering if it's even worth the effort, Caleb agrees-for his father's sake more than for his marriage. When Caleb discovers the book's daily challenges are tied into his parents' newfound faith, his already limited interest is further dampened.

While trying to stay true to his promise, Caleb becomes frustrated time and again. He finally asks his father, "How am I supposed to show love to somebody who constantly rejects me?"

When his father explains that this is the love Christ shows to us, Caleb makes a life-changing commitment to love God. And so with God's help he begins to understand what it means to truly love his wife.

But is it too late to fireproof his marriage? His job is to rescue others. Now Caleb Holt is ready to face his toughest job ever...rescuing his wife's heart.

Senate impeachment rules in Chief Justice Corona’s trial (Plain English / Plain Language revisions)

What is Plain Language?

Related posts: Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines Plain Language revisions: DSWD Travel Clearance for Minors Plain Language revisions: Public Attorney’s Office guidelines Plain Language revisions: PVAO educational benefits Plain Language revisions: RA 9994 Expanded rights of senior citizens Plain Language revisions: PDIC notice to Banco Filipino depositors Plain Language revisions: BSP Circular No. 702, Series of 2010 on protection of credit card holders Plain Language revisions: DepEd Order No. 88 s. 2010

Before the start of Ombudsman Merceditas Gutierrez’s impeachment trial several months ago, Senator Miriam Defensor-Santiago stated in media interviews that the Senate “Rules Of Procedure On Impeachment Trials” should be written in plain language. Sen. Santiago said this was necessary for the public to understand the rules and because not all senators were lawyers.

Among other things, Sen. Santiago said that needless words (like “hereinunder”) must be omitted. She also said that the rules used old-fashioned English. Sadly, Sen. Santiago’s suggestions were not followed.

(Sen. Santiago is the author of two bills that require health insurance documents and all government communications, except regulations, to be written in plain language.)

With all due respect for the Senate, I am posting these Before and After revisions of its Rules of Impeachment (1) for the benefit of millions of Filipinos who are expected to follow on TV and radio the impeachment trial of Chief Justice Renato Corona starting January 2012; and (2) to show what the impeachment rules could look like when written in Plain Language.

If there are discrepancies between the official Senate rules of procedure and my revisions, you must follow the official Senate rules.

Before	After
I. When the Senate receives articles of impeachment pursuant to Article XI, Sections 2 and 3 of the Constitution, the President of the Senate shall inform the House of Representatives that the Senate shall take proper order on the subject of impeachment and shall be ready to receive the prosecutors on such time and date as the Senate may specify.	I. When the Senate receives articles of impeachment under Article XI, Sections 2 and 3 of the Constitution, the Senate President must inform the House of Representatives that the Senate will take proper order on the subject of impeachment and will be ready to receive the prosecutors on the time and date the Senate will specify.

Vague expression: What does “take proper order on the subject of impeachment” mean?

“Pursuant to” is legalese; it’s better to use “under” or “in accordance with” as Martin Cutts suggests in his “Plain English Lexicon”.

The word “shall” is repeatedly used in the Senate Rules of Impeachment. As Prof. Joseph Kimble has observed, the meaning of “shall” is ambiguous, changing from sentence to sentence. US courts have ruled that “shall” can mean (1) has a duty to; (2) should; (3) is; (4) will; or (5) may. To avoid this ambiguity, the US Federal Rules of Civil Procedure now use should, may, or must instead of “shall”, except in the rule on summary judgment (Michigan Bar Journal, December 2007). In these revisions, I replaced “shall” with what the context called for.

Before

After

II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside but shall not vote. Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend. The Chief Justice shall be administered the oath or affirmation, prescribed under these Rules, by the President of the Senate and shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached. The President of the Senate shall preside in all other cases of impeachment and, for that purpose, placed under the prescribed oath or affirmation by any person authorized by law to administer an oath.

II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court will preside but cannot vote. The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend. The Senate President must administer the oath or affirmation prescribed under these Rules to the Chief Justice. The Chief Justice must preside over the Senate during the consideration of the articles of impeachment and the trial. The Senate President must preside in all other cases of impeachment. He or she must be placed under the prescribed oath or affirmation by any person authorized by law to administer an oath.

Question: What exactly is involved in “considering” the articles of impeachment? The words “consideration”, “considering” and “consider” are used several times in the impeachment rules. Does “considering the articles of impeachment” refer only to that stage when the senators took their oath and ordered the issuance of the summons for Chief Justice Corona? Or does it refer to the whole impeachment trial? The phrase “shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached” seems to indicate that there are two different stages. But Rule III says that the Senate must continue in session until it has rendered final judgment; this seems to indicate that these are not different stages.

Passive voice: “Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend.” I changed most passive voice sentences into the active voice. For example, this sentence became: “The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend.”

Before

After

III. Before proceeding to the consideration of the articles of impeachment, the Presiding Officer shall administer the prescribed oath or affirmation to the Members of the Senate then present and to the other Members of the Senate as they shall appear, whose duty it shall be to take the same. Upon presentation of the articles to the Senate, the Senate shall specify the date and time for the consideration of such articles. Unless the Senate provides otherwise, it shall continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until final judgment shall be rendered, and so much longer as may, in its judgment, be necessary. Senators shall observe political neutrality during the course of the impeachment trial. “Political neutrality” shall be defined as exercise of public official’s duty without unfair discrimination and regardless of party affiliation or preference.

III. Before the Senate considers the articles of impeachment, the Presiding Officer must administer the prescribed oath or affirmation to the senators. All senators must take the oath or affirmation before they can participate in the impeachment proceedings. Upon presentation of the articles to the Senate, it must specify the date and time to consider the articles. Unless the Senate provides otherwise, it must continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until it has rendered final judgment, or beyond if necessary. Senators must observe political neutrality during the course of the impeachment trial. “Political neutrality” is the exercise of a public official’s duty without unfair discrimination and regardless of party affiliation or preference.

The phrase “Before proceeding to the consideration of the articles of impeachment” at the beginning of this Rule is a misplaced modifier. It appears that it is only the Presiding Officer (or the Senate President in this case) who will consider the articles of impeachment, not the whole Senate. I changed the phrase into the active voice: “Before the Senate considers the articles of impeachment”. (Again the question pops up, what does “consideration” or “consider” mean?)

The second paragraph states “Upon presentation of the articles to the Senate”. Who makes the presentation to the Senate? The Presiding Officer?

The words “same”, “said”, and “such” should not be used as modifiers or as pronouns because they are vague. Bryan A. Garner, editor in chief of Black’s Law Dictionary, includes these words in his Dirty Dozen list. In the impeachment rules “same” as a pronoun is used five times; “said” is used seventeen times; and “such” is used nineteen times. (Please see the table below listing the various times “same”, “said”, and “such” are used in the impeachment rules.)

On the word “same”, Garner says:

Many lawyers use “same” as a pronoun because they think they are being precise. For example: “Once the indemnitee receives such notice, the indemnitee shall acknowledge same.” Use “it” instead of “same” (“it” is not less precise).

Ordinary pronouns are better than “same” because they differentiate singular from plural – “same” doesn’t.

On the word “such”, Garner explains:

“Such” is inherently ambiguous. To the educated non-lawyer, it means “of that kind”. To the lawyer, it means “the very one just mentioned”. “Such” can oftentimes be replaced by “the”.

On the word “said”, Scott P. Stolley in Michigan Bar Journal, August 2003 clarifies:

It is a crutch word that lends awkwardness, not precision. There is no need to say ‘‘To the Honorable Judge of Said Court.’’ Just say ‘‘To the Honorable Court.’ Don’t say: ‘‘The said witness saw the said defendant run the light.’’ Simply say ‘‘The witness saw the defendant run the light.’’

Rule III should instead have been devoted strictly to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.

Question: After the trial, if the Senate votes to remove Chief Justice Corona from his office, how will its judgment be executed? The Senate impeachment rules do not have any provision on the execution of judgment.

Before	After
IV. The Presiding Officer shall have the power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, and writs authorized by these Rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.	IV. The Presiding Officer, by himself or by the Secretary of the Senate, has the power to issue and enforce all orders, mandates, writs, regulations, and orders authorized by these Rules or by the Senate.

Redundant expressions: (1) “make and issue”; (2) “make and enforce”; and (3) “authorize or provide”.

Before

After

V. The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, and writs of the Senate.

V. The Senate has the power to: compel witnesses to attend; enforce obedience to its orders, mandates, writs, and judgments; preserve order; punish in a summary way contempt of, or disobedience to, its authority, orders, mandates, writs, or judgments; and make all orders, rules, and regulations it may consider essential to the ends of justice. The Sergeant-at-Arms of the Senate, as directed by the Senate President, may employ the aid of government agencies in enforcing the orders, mandates, and writs of the Senate.

Redundant expressions: “aid and assistance”, “enforce, execute, and carry into effect”, “essential or conducive”.

Vague: “Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance”. Aid and assistance from whom or from where?

The first sentence of Rule V has about 60 plus words. I broke up this long sentence into a vertical list. Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, August 2007):

“The vertical list is one of the drafter’s—and reader’s—best friends. Probably no other technique is more useful for organizing complex information, breaking it down into manageable chunks, avoiding repetition, and preventing ambiguity.”

This Rule incorrectly uses the word “deem”. Garner in his book on language and writing says that “the word deem should create a legal fiction, not state a truth.” In “Synthesis: Legal Reading, Reasoning and Writing in Canada” (by Margaret Elizabeth McCallum, Christina L. Kunz, Deborah A. Schmedem), the authors recommend:

Avoid use of the term “to deem” as a substitute for “to think” or “to consider”. The word means “to treat [a thing] as being something that it is not, or possessing certain qualities it does not possess”. In this technical sense, “deem” is used in statutes to create a legal fiction; for example, a statute that requires applications to be originals signed by the applicant may provide that faxed applications will be deemed to be originals.

The phrase “all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice” incorrectly uses the relative pronoun “which” instead of “that”. In formal American English, “that” is used for restrictive clauses while “which” (surrounded by commas) is used for non-restrictive clauses. A clause is non-restrictive if it merely provides additional information and can be removed without changing the meaning. In British English, there is no distinction between “that” and “which”. Most Filipinos, unaware of the difference between restrictive and non-restrictive clauses, use “which” instead of “that”. (I have also made this mistake on several occasions.) But to achieve precision in government communications, we must follow the American English distinction between the relative pronouns “that” and “which”. (Please read Jose Carillo’s English Forum article “Learning to use the relative pronouns confidently”.)

Before

After

VI. The President of the Senate or the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency or admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed; or the Presiding Officer may at his/her option, in the first instance, submit any such question to a vote of the Members of the Senate. The motion for a vote and the contrary opinion shall not take more than two (2) minutes each, with a one minute rebuttal allowed for the proponent of the motion. The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.

VI. The Presiding Officer may rule on: questions of evidence such as materiality, relevancy, competency or admissibility; and incidental questions. The ruling will stand as the judgment of the Senate. But if a senator asks that a formal vote be taken on the ruling, the Presiding Officer must submit the ruling for the Senate’s decision, after one contrary opinion has been expressed. The motion for a vote and the contrary opinion must not take more than two minutes each, with a one minute rebuttal allowed for the motion’s proponent. Instead of ruling by himself or herself, the Presiding Officer can choose to submit any question for the Senate’s vote. When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court.

The first sentence of Rule VI is an ultra long sentence, with about 100 words. I revised it by dividing it into three sentences, with the first sentence using a vertical list.

The phrase “such as, but not limited to” is legalese and can be changed to “such as” without any negative legal effect.

The word “suppletorily” is jargon. Instead of the sentence “The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.”, I changed it to “When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court.”

Before

After

VII. Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided, a writ of summons shall be issued to the person impeached, reciting or incorporating said articles, and notifying him/her to appear before the Senate upon a day and at a place to be fixed by the Senate and named in such writ, and to file his/her Answer to said articles of impeachment within a non-extendible period of ten (10) days from receipt thereof; to which the prosecutors may Reply within a non-extendible period of five (5) days therefrom; and to stand to and abide by the orders and judgments of the Senate. Such writ shall be served by such officer or person named in the order thereof, not later than three (3) days prior to the day fixed for such appearance of the person impeached, either by the delivery of an attested copy thereof to the person impeached, or if personal service cannot be done, service of the writ may be made by leaving a copy with a person of sufficient age and discretion at his/her last known address or at his/her office or place of business; and if the service of such writ shall fail the proceedings shall not thereby abate, but further service may be made in such manner as the Senate shall direct. If the person impeached, after service, shall fail to appear, either in person or by counsel, on the day so fixed or, appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed nevertheless as upon a plea of not guilty. If a plea of guilty shall be entered, judgment may be entered thereon without further proceedings.

VII. The Senate must issue a writ of summons to the person impeached. The writ must: recite or incorporate the articles; notify the person impeached to appear before the Senate on the day and place fixed by the Senate; order the person impeached to file an Answer to the articles within a non-extendible period of ten days from receipt of the summons, with copy furnished to the panel of prosecutors; and order the person impeached to abide with the orders and judgments of the Senate. The officer or person charged with serving the writ must serve it not later than three days before the day fixed for the appearance of the person impeached either by: delivering an attested copy of the writ to the person impeached; or if personal service cannot be done, by leaving the copy with a person of sufficient age and discretion at his or her last known address, office, or place of business. If the writ cannot be served in the ways stated above, the Senate can direct that the summons be served in some other manner. The trial will proceed even if: the person impeached, after due service of the writ, fails to appear either in person or by counsel, on the day fixed in the summons; or the person impeached fails to file his Answer to the articles of impeachment. After the prosecutors have received the Answer, they have a non-extendible period of five days to file their Reply.

This Rule should have been incorporated into Rule III (or placed after it). The phrase “Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided” raises two questions: One, as I have noted before, who presents the articles of impeachment to the Senate? Does presenting the articles refer to the submission of the articles to the Senate by the House of representatives? Or does it refer to the Presiding Officer informing the Senate that the articles have been submitted to it?

Two, “organization of the Senate” into what? Into an impeachment court, of course, but this is not clearly provided. To what Rule does “hereinbefore provided” refer to? As I said above, Rule III should have been clearly devoted to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.

The sentences in this section are too long. I made them simpler by using numbered lists.

Vague: What does “to stand to ... the orders and judgments of the Senate” mean?

The phrase “prior to” is legalese. As Prof. Kimble suggests, the simpler word “before” should be used instead.

The provisions on (1) the filing of a Reply by the prosecutors and (2) entering of a plea of guilty should have been placed in the other Rules.

Before	After
XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.	XII. The Secretary of the Senate must record and report the proceedings in impeachment cases in the same manner as the legislative proceedings of the Senate.

Rule XII is verbose: the word “proceedings” is used three times in a single sentence, and the second part of the sentence (after the word “and”) can easily be incorporated into the first part.

I changed the phrase “in cases of impeachment” to “impeachment cases”. Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, November 2007) says that we should root out unnecessary prepositional phrases and question every of.

Before	After
XIII. Counsel for the parties shall be admitted to appear and be heard upon an impeachment: Provided, That counsel for the prosecutors shall be under the control and supervision of the panel of prosecutors of the House of Representatives.	XIII. The person impeached and the panel of prosecutors of the House of Representatives can be represented by their lawyers. The lawyer for the panel of prosecutors must be under its control and supervision.

The phrase “Counsel for the parties shall be admitted to appear and be heard upon an impeachment” is a formalism. I changed the word “counsel to the ordinary term “lawyer.

I removed the proviso (Provided, That ...). Prof. Kimble in his article “Down with Provided That” (Michigan Bar Journal, July 2004) enumerates the criticisms made by legal drafting experts against provisos. Among others, Kimble cites:

[1] Thomas R. Haggard, Legal Drafting in a Nutshell 279 (2d ed. 2003): ‘‘[P]rovided that . . . defies grammatical analysis. Provisos produce single sentences that are often hundreds of words long. Knowledgeable drafters have railed against them for years. Apart from being a grammatical abomination, provided that is ambiguous . . . .’’

[2] David Mellinkoff, Mellinkoff ’s Dictionary of American Legal Usage 520 (1992): ‘‘[The proviso] is one of the horrors of legal writing, in a class with notwithstanding.’’

Before	After
XVI. If a Senator is called as a witness, he/she shall be sworn, and give his/her testimony standing in his/her place.	?

What exactly does “give his/her testimony standing in his/her place” mean? In our trial courts, the witness usually sits beside the judge’s table (so that the judge can clearly hear the testimony and observe the demeanor of the witness). If you remember from the impeachment trial of former President Joseph Estrada, the senator-judges were sitting in one section of the Senate hall and in front of them was a chair reserved for the witness called to testify. The lawyers for President Estrada and the House panel of prosecutors were on opposite sides of the hall, at right angles to where the senator-judges were. Does Rule XVI mean that the senator-witness will not sit down in the place reserved for the testifying witness but instead will testify while standing up in the section of the hall reserved for the senator-judges? This seems to be what Rule XVI is saying because Rule XXI states: “Thereafter, each Senator, as his/her name is called, shall rise in his/her place and answer: guilty or not guilty.”

But what’s the point in requiring the senator called as a witness to stand up while testifying? What if the senator is arthritic and cannot stand up for a long period of time? Will it be a violation of Rule XVI if the senator requests that he or she be allowed to sit down while testifying?

Before

After

XXI. The trial of all the articles of impeachment shall be completed before the Senators vote on the final question on whether or not the impeachment is sustained. On the final question whether the impeachment is sustained, the vote shall be taken on each article of impeachment separately; and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of all the Members, a judgment of acquittal shall be entered; but if the person impeached in such articles of impeachment shall be convicted upon any of said articles by the votes of two-thirds of all the Members, the Senate shall proceed to pronounce judgment of conviction, and a certified copy of such judgment shall be deposited in the Office of the Secretary of the Senate. A motion to reconsider the vote by which any article of impeachment is sustained or rejected shall not be in order.

XXI. The Senate must complete the trial of all the articles of impeachment before it votes on whether the person impeached is guilty or not. The Senate must vote on each article of impeachment. An affirmative vote of two-thirds of all the senators is necessary to convict the person impeached of any of the articles of impeachment. If the impeachment is not sustained on any of the articles of impeachment, the Senate must render a judgment of acquittal. If the person impeached is convicted on any of the articles of impeachment, the Senate must render a judgment of conviction for that article. A certified copy of the judgment, whether for acquittal or conviction, must be deposited in the Office of the Secretary of the Senate. A motion for reconsideration of the vote on any of the articles of impeachment is not allowed

Redundant expressions: The phrase “on the final question on whether or not the impeachment is sustained” is used twice (first and second sentences). The phrase “by the votes of two-thirds of all the Members” is used twice in the second sentence.

In the clause “the vote shall be taken on each article of impeachment separately”, the adverb “separately” is unnecessary or redundant because of the word “each“.

The second sentence is ultra long with 105 words, and is complex, dealing with several issues (voting on each article; judgment of acquittal; judgment of conviction; two-thirds vote; and deposit of the judgment). I broke up this sentence into five sentences (in four paragraphs).

Rule XXI uses the words “enter” and “pronounce” in connection with “judgment”. I used the word “render” instead.


I will be adding more revisions and refining them as the impeachment proceedings against Chief Justice Corona unfold. If you have your own plain language revisions that can make the Senate rules on impeachment more understandable for the public, please send them to me at gtgalacio@yahoo.com. I am sure that some of you have noticed that the impeachment rules use a lot of nominalizations (verbs turned into nouns). Can you spot the nominalizations or “nouners” as Prof. Kimble calls them?

Same	Said	Such
Rule III whose duty it shall be to take the same. Rule IX the same shall be recorded Rule XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate. Rule XVIII The same shall likewise apply to the prosecutors, to the person impeached, and to their respective counsel and witnesses. Rule XXIII it being necessary to use the same as testimony.	Rule II during the consideration of said articles Rule VII reciting or incorporating said articles file his/her Answer to said articles of impeachment Rule XI adjournment of the Senate sitting in said trial XXI be convicted upon any of said articles Rule XXIII Presiding Officer of the said Senate the service of said subpoena the said ______ the said ______ the accusations as set forth in said articles the said ________ to answer to the said articles of impeachment Presiding Officer of the said Senate Form of Order to be indorsed on said writ of summons. mentioned in the said writ of summons. mentioned in the said writ of summons. Presiding Officer of the said Senate	Rule I to receive the prosecutors on such time and date Rule III for the consideration of such articles enforce such other regulations and orders employ such aid and assistance Rule VI submit any such question to a vote Rule VII named in such writ Such writ shall be served day fixed for such appearance of the person impeached if the service of such writ shall fail made in such manner as the Senate shall direct answer to such articles of impeachment Rule VIII I have performed such service Rule X at such other hour as the Senate may order Rule XI the Presiding Officer upon such trial Rule XXI the person impeached in such articles of impeachment certified copy of such judgment Rule XXIII such proceedings, examinations, trials, and judgments perform such orders, directions, and judgments Rule XXIV fix a day and hour for resuming such consideration

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Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines”. (2) I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome.

Ad cautelam: filing of pleadings and appearing in court to question its jurisdiction or as a precautionary measure

Plain English / Plain Language version of “ad cautelam” Two years ago, in an MCLE seminar sponsored by the Quezon City IBP, the speaker on Civil Procedure (from Romulo Mabanta) said that instead of “ad cautelam” or “ex abundanti ad cautelam”, lawyers should simply use the phrase “with express reservation on jurisdiction”.

The Latin term “ad cautelam” can be translated into English as “for security”, “as a precaution”, or “to be on the safe side.” The phrase “ex abundanti ad cautela” means “with extreme caution”.

The Revised Rules of Court do not have a specific provision on ad cautelam. But it has been used in at least two ways:

[1] To question a court’s jurisdiction and at the same time be able to file pleadings, lawyers can caption their pleadings as “ad cautelam”. In court hearings, lawyers must inform the judge that they are questioning the court’s jurisdiction.

[2] Ad cautelam pleadings may be filed as a precautionary measure to preserve a party’s remedies.

Using ad cautelam to file pleadings or ask for reliefs while questioning a court’s jurisdiction

[1] GMA’s electoral sabotage case before the Pasay City RTC

Lawyers for former President Gloria Macapagal-Arroyo (GMA) have been filing pleadings captioned “ad cautelam” with the Pasay City Regional Trial Court. They are questioning before the Supreme Court the RTC’s jurisdiction over the electoral sabotage case filed by the COMELEC against the former president. But at the same time, they have been asking the RTC for certain reliefs for GMA like hospital arrest, the use of a cellphone and laptop, etc. By captioning their pleadings with ad cautelam, these lawyers are reminding the RTC that they are not accepting its jurisdiction over the case.

[2] Does a rehabilitation court have jurisdiction over a partially executed NLRC decision?

Many years ago, I represented a former hotel chef. He had won his NLRC case for back wages against the hotel, and the decision had been partially executed. But the hotel filed for corporate rehabilitation with the Regional Trial Court in Manila, and the judge ordered all parties with money claims against the hotel to file their Answer. Parties who failed to file their Answer could no longer pursue their claims.

If I had filed an Answer for my client, it would have meant that I was accepting the court’s jurisdiction. My theory was that the NLRC had jurisdiction because it was a labor case and its decision had been partially executed. But as a precaution, I filed with the Manila RTC a pleading captioned “Manifestation/Motion ex abundanti ad cautelam”. In the pleading, I stated that while my client was complying with the court’s order, he was questioning its jurisdiction. In layman’s terms, it was better safe than sorry.

Using ad cautelam as a precautionary measure

[1] Aguedo F. Agbayani, petitioner, vs. The Commission On Elections And Rafael M. Colet, respondents. G.R. No. 87440-42 June 13, 1990

Agbayani, a Pangasinan gubernatorial candidate, filed pre-proclamation protest cases against his political rival Colet. When Colet was proclaimed as governor, Agbayani filed an election protest. Because of his pending pre-proclamation cases, he captioned his election protest ex abundante ad cautelam. The Comelec, acting on the election protest, required Colet to file a responsive answer. Agbayani then filed a reply, which he also captioned ad cautelam.

The Comelec dismissed Agbayani’s pre-proclamation cases and his motion for reconsideration. It said that the pre-proclamation controversy became moot and academic when Agbayani filed the election protest and his reply, even if they were both captioned ad cautelam.

Agbayani appealed to the Supreme Court. Ruling in his favor, the Court noted that Agbayani filed the election protest ad cautelam (or “for safety’s sake) just in case the Comelec dismissed his pre-proclamation cases. For the upcoming barangay elections, a Comelec resolution provided that all ballot boxes would be used for the barangay elections, unless they were not involved in any pre-proclamation-controversy, election protest, or official investigation. Agbayani thus wanted to preserve all the ballot boxes and their contents so that he could file an election protest later on. The Court said:

As the above-mentioned cases involved only nine precincts, it was only prudent for the petitioner to file his protest ad cautelam in case the pre-proclamation controversy was ultimately dismissed and it became necessary for him to activate his protest. The protest would involve all the precincts in the province. If he had not taken this precaution, an the other ballot boxes would have been emptied and their contents would have been burned and forever lost.

As to Agbayani’s filing of a reply, the Court said:

It was not the fault of the petitioner if the COMELEC decided to give due course to the protest right away even if it was ad cautelam. The protest was at that time only tentative, awaiting the disposition of the pre-proclamation controversy. The petitioner did file a reply to the private respondent’s answer with counter-protest, but it was only to prevent any declaration that he had by his inaction waived, the right to file responsive pleadings. Such a reply did not make the pre-proclamation controversy moot and academic.

Most indicative of the petitioner’s intention is the express reservation he made in the protest ad cautelam itself, where he clearly stated:

As additional precautionary measure, the protestant herein is filing this protest and cautela(m), without withdrawing his petitions in said pre-proclamation controversy, in order to exempt from the provisions of Section 1 of Resolution No. 2035 the precincts hereinafter specified. (Emphasis supplied)

[2] Francisco I. Chavez, Petitioner, versus Commission On Elections, Respondent. G. R. No. 105323, July 3, 1992. G. R. No. 105323, July 3, 1992

Former Solicitor General Francisco I. Chavez, a senatorial candidate in the 1992 elections, alleged that he lost at least 1.7 million votes because of a nuisance candidate with the same surname as his. On May 23, 1992, he filed an urgent petition before the Comelec asking it to [1] implement its May 12, 1992 resolution with costs de oficio; [2] to re-open the ballot boxes in 13 provinces including the National Capital Region involving some 80,348 precincts and to scan for the “Chavez” votes for purposes of crediting the same in his favor; [3] make the appropriate entries in the election returns/certificates of canvass; and [4] to suspend the proclamation of the 24 winning candidates.

Dissatisfied with the failure of the Comelec to act on his petition, Chavez filed with the Supreme Court an urgent Petition Ad Cautelam for prohibition and mandamus, with prayer for the issuance of a temporary restraining order, enjoining the Comelec from proclaiming the 24th highest senatorial candidate, without first implementing respondent Comelec’s resolution of May 12, 1992 and acting upon petitioner’s letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992.

On June 4, 1992, the Supreme Court issued a Temporary Restraining Order enjoining the Comelec from proclaiming the 24th winning senatorial candidate and setting the case for hearing on June 9, 1992. On the same day, Chavez filed a manifestation stating that on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by the Comelec. He also prayed that the Petition Ad Cautelam be considered a regular petition.

On June 8, 1992, Senator Agapito Aquino (the 24th ranked senator) filed a Motion for Leave to Intervene with Comment in Intervention praying for the dismissal of Chavez’s petition. Sen. Aquino argued that the petition was in the nature of a pre-proclamation controversy, which was not allowed in elections involving senators.

The Supreme Court ruled in Sen. Aquino’s favor, stating that Chavez’s proper recourse is to file a regular election protest which, under the Constitution and the Omnibus Election Code, exclusively pertains to the Senate Electoral Tribunal.

[3] Hongkong And Shanghai Banking Corporation Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 159590, October 18, 2004, and HSBC International Trustee Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 15959, October 18, 2004

Sometime in March 1997, Frederick Arthur Thomson (Thomson) issued five HSBANK checks amounting to HK$3,200,000.00, payable to Cecilia Diez Catalan (Catalan). When the checks were deposited, HSBANK returned them purportedly for reason of “payment stopped” pending confirmation, despite the fact that the checks were duly funded.

In January 2001, Catalan filed before the RTC a complaint for a sum of money with damages against HSBANK due to its alleged refusal to pay her the value of the checks issued by Thomson.

In September 2001, Catalan filed an Amended Complaint impleading petitioner HSBC TRUSTEE as co-defendant and invoking Article 19 of the Civil Code as basis for her cause of action. Catalan prayed that HSBANK and HSBC TRUSTEE be ordered to pay Php 20,864,000.00 representing the value of the five checks at the rate of Php 6.52 per HK$1 as of January 29, 2001 for the acts of HSBANK and HSBC TRUSTEE in refusing to pay the amount justly due her, in addition to moral and exemplary damages, attorney’s fees and litigation expenses.

HSBANK filed a motion for extension of time to file an Answer or a motion to dismiss. On October 2, 2001, HSBANK filed a Motion to Dismiss Amended Complaint alleging, among other grounds, that it did not submit to the jurisdiction of the RTC when it filed its motion for extension of time.

On the other hand, HSBC TRUSTEE, without submitting itself to the jurisdiction of the RTC, filed a Special Appearance for Motion to Dismiss Amended Complaint, questioning the jurisdiction of the RTC over it. HSBC TRUSTEE alleged that tender of summons through HSBANK Makati did not confer upon the RTC jurisdiction over it.

On May 15, 2002, the RTC issued an Order denying the two motions to dismiss. HSBANK and HSBC TRUSTEE filed separate motions for reconsideration but both were denied by the RTC in an Order dated December 20, 2002.

On February 21, 2003, Catalan moved to declare HSBANK and HSBC TRUSTEE in default for failure to file their Answer to the amended complaint.

On March 5, 2003, HSBANK and HSBC TRUSTEE filed separate “petitions for certiorari and/or prohibition” with the Court of Appeals (CA).

Subsequently, HSBANK and HSBC TRUSTEE filed before the RTC separate Answers ad cautelam, both dated March 18, 2003, as a “precaution against being declared in default and without prejudice to the separate petitions for certiorari and/or prohibition then pending with the CA”.

Among several grounds for their appeals, HSBANK and HSBC TRUSTEE alleged that the Court of Appeals committed serious error by holding that they had submitted to the jurisdiction of the trial court by filing an Answer to the Amended Complaint.

Issue: Did the RTC acquire jurisdiction over HSBANK and HSBC TRUSTEE when they filed their respective Answers ad cautelam?

The Supreme Court ruled:

Against HSBANK

In favor of HSBC TRUSTEE

The Rules of Court provides that a court generally acquires jurisdiction over a person through either a valid service of summons in the manner required by law or the person’s voluntary appearance in court. HSBANK initially filed a Motion for Extension of Time to File Answer or Motion to Dismiss. HSBANK already invoked the RTC’s jurisdiction over it by praying that its motion for extension of time to file answer or a motion to dismiss be granted. The Court has held that the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court. Consequently, HSBANK’s expressed reservation in its Answer ad cautelam that it filed the same “as a mere precaution against being declared in default, and without prejudice to the Petition for Certiorari and/or Prohibition xxx now pending before the Court of Appeals” to assail the jurisdiction of the RTC over it is of no moment. Having earlier invoked the jurisdiction of the RTC to secure affirmative relief in its motion for additional time to file answer or motion to dismiss, HSBANK, effectively submitted voluntarily to the jurisdiction of the RTC and is thereby estopped from asserting otherwise, even before this Court.

In contrast, the filing by HSBC TRUSTEE of a motion to dismiss cannot be considered a voluntary submission to the jurisdiction of the RTC. It was a conditional appearance, entered precisely to question the regularity of the service of summons. It is settled that a party who makes a special appearance in court challenging the jurisdiction of said court, e.g., invalidity of the service of summons, cannot be considered to have submitted himself to the jurisdiction of the court. HSBC TRUSTEE has been consistent in all its pleadings in assailing the service of summons and the jurisdiction of the RTC over it. Thus, HSBC TRUSTEE cannot be declared in estoppel when it filed an Answer ad cautelam before the RTC while its petition for certiorari was pending before the CA. Such answer did not render the petition for certiorari before the CA moot and academic. The Answer of HSBC TRUSTEE was only filed to prevent any declaration that it had by its inaction waived the right to file responsive pleadings.

More to come. For now, let me leave you with this quote from Congressman Ronnie Zamora. During the 2005 impeachment deliberations against GMA, Congressman Zamora said that his father told him: “Keep away from lawyers who start their sentences with ex abundanti ad cautela.”