If there’s no valid marriage license, then the marriage contract, authority of solemnizing officer, testimony of witnesses and sponsors, wedding pictures, etc. do not mean anything

Plain Language summary: Case title: “Syed Azhar Abbas v. Gloria Goo Abbas,” G.R. No. 183896. January 30, 2013 Issue: The Regional Trial Court (RTC) ruled that no valid marriage license was issued and thus the marriage is void. The RTC based its ruling on the certification by the Municipal Civil Registrar of Carmona, Cavite that no marriage license was issued to Syed and Gloria. On the other hand, the Court of Appeals held that, for several reasons, Syed and Gloria were validly married. The certification of the Municipal Civil Registrar failed to categorically state that a diligent search for the marriage license was conducted under Sec. 28, Rule 132 of the Rules of Court. Supreme Court ruling: Syed and Gloria’s marriage is void because they did not have a valid marriage license. Relevant cases and legal provisions: Republic vs. Court of Appeals, G.R. No. 103047, September 2, 1994, 236 SCRA 257 Cariño vs. Cariño, 403 Phil. 861, 869 (2001) Section 28, Rule 132 of the Rules of Court Family Code of the Philippines: Article 3; Article 4; Article 35 (3)

Background facts

Syed Azhar Abbas (Syed) filed a petition for the declaration of nullity of his marriage to Gloria GooAbbas (Gloria) with the Regional Trial Court of Pasay City (RTC).

The RTC ruled that Syed and Gloria’s marriage was void from the beginning because they did not have a valid marriage license. The Municipal Civil Registrar of Carmona, Cavite certified that Syed and Gloria’s alleged Marriage License No. 9969967 was actually issued to a certain Arlindo Getalado and Myra Mabilangan.

On the other hand, the Court of Appeals ruled that Syed and Gloria’s marriage was valid because:

1. The Municipal Civil Registrar’s certification cannot be used as evidence because it failed to categorically state that a “diligent search” for the marriage license was conducted, as required by Section 28, Rule 132 of the Rules of Court.

2. Both Syed and Gloria were legally capacitated to marry; the Embassy of Pakistan issued a certificate of legal capacity in Syed’s favor.

3. Syed admitted to signing the marriage contract.

4. Several pictures were presented showing Syed and Gloria before the solemnizing officer, the witnesses, and other members of Gloria’s family, taken during the marriage ceremony and in the restaurant where the lunch was held after the marriage ceremony.

5. Syed and Gloria comported themselves as husband and wife.

6. Syed only filed his petition after Gloria had filed a case against him for bigamy.

Supreme Court ruling

1. Syed and Gloria’s marriage is void because they did not have a valid marriage license.

2. All the evidence cited by the CA to show that a wedding ceremony was conducted and a marriage contract was signed cannot cure the absence of a valid marriage license. Article 4 of the Family Code is clear when it says, “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2).”

3. From the absence of the words “despite diligent search” in the certification, the CA reasoned that no diligent search was conducted and thus, the certification could not be used as evidence. But a categorical declaration is not absolutely necessary for Sec. 28, Rule 132 to apply, as held in Republic vs. Court of Appeals and in Cariño vs. Cariño.

The Municipal Civil Registrar did conduct a “diligent search” because it located and submitted Marriage License No. 996967 to the RTC.

4. The solemnizing officer testified that the marriage contract and a copy of the marriage license were submitted to the Local Civil Registrar of Manila. Gloria could have simply secured a copy of the license from that office and submitted it to the RTC. But Gloria inexplicably failed to do so, further weakening her claim that there was a valid marriage license issued for her and Syed.

A notarized document can be questioned as to validity of its execution or contents

Case title: “Spouses Lehner and Ludy Martires v. Menelia Chua,” G.R. NO. 174240, March 20, 2013 Issues: Validity of a notarized document Equitable mortgage

Background facts

[1] Menelia Chua and her mother owned 24 memorial lots located at the Holy Cross Memorial Park in Barangay Bagbag, Novaliches, Quezon City. Menelia borrowed Php 150,000.00 from spouses Lehner and Ludy Martires. Menelia promised to pay a monthly interest of 8% and an additional 10% monthly interest in case of default. The loan was secured by a real estate mortgage over the memorial lots.

[2] Menelia failed to fully settle her obligation. Subsequently, without foreclosing the mortgage, the Martires couple transferred ownership of the lots in their name through a Deed of Transfer.

[3] Menelia filed with the Regional Trial Court (RTC) of Quezon City a complaint against the Martires couple, Manila Memorial Park Inc. (owner of the Holy Cross Memorial Park), and the Register of Deeds of Quezon City. She asked the RTC to:

• annul the contract of mortgage between her and the Martires couple on the ground that the interest rates imposed were unjust and exorbitant;
  
  
• determine her liability under the law; and
  
  
• reconvey the disputed property to her.

Menelia later on alleged that the Deed of Transfer and Affidavit of Warranty were forged and asked that they be annulled.

[4] The RTC dismissed Menelia’s complaint for lack of merit and granted the counterclaims of the Martires couple.

[5] The Court of Appeals (CA) reversed the RTC decision. The CA ruled, among other things, that the Deed of Transfer was not duly notarized because there was no convincing proof that Menelia appeared before the notary public.

Supreme Court ruling: notarization does not guarantee the validity of a document’s contents

[1] The CA has pointed out the dubious circumstances and irregularities in the alleged notarization of the Deed of Transfer. Among others:

• the Administrative Officer of the Notarial Section of the Makati City RTC certified that their office could not find a copy of the Deed of Transfer in their files;
  
  
• the Deed did not state the date of execution and lacked the marital consent of Menelia's husband;
  
  
• the notary public whose certification was presented by the Martires couple did not testify and therefore could not be cross-examined as to the truthfulness of his certification;
  
  
• the certification of the Clerk of Court of the Notarial Section of the Makati City RTC was not based on documents existing in their files, but was simply based on the certification issued by the notary public.

[2] A notarized document enjoys the presumption of regularity. But notarization does not guarantee the validity of the document’s contents. The presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.

Citizens’ guide to the budget: a weapon against pork barrel scams and corruption, and for government transparency and accountability

Overview: Civil society groups and private individuals must  (1) scrutinize the national budget's pork barrel allocations, lump sums, unprogrammed funds, and (2) pressure Congress or Malacanang to produce a “citizens’ guide to the budget.” Civil society groups should partner with the International Budget Partnership. Civil society groups and private individuals can learn budget advocacy and monitoring through IBP’s Open Budgets Game! Reasons why governments should publish a citizens' guide to the budget Countries that currently publish a citizens’ guide to the budget Producing a citizens’ guide to the budget can either be (a) mandated by law, or (b) a proactive move by Congress or Malacanang Examples of citizens’ guide to the budget

After the successful and festive meeting of thousands of ordinary Filipinos in Luneta last week against the pork barrel scam, many are asking, “What’s next? How can Filipinos continue the fight against the pork barrel scam and corruption in government?”

My suggestions are for civil society groups and private individuals to (1) scrutinize the national budget's pork barrel allocations, and (2) pressure Congress or Malacanang to produce a “citizens’ guide to the budget.”

President Aquino has changed the system in the allocations for congressional and senatorial projects. These allocations will now become line items in the national budget. Presumably, this new set-up will prevent another scam. But the national budget is thousands of pages long and only a few Filipinos have the technical expertise to understand it.

[1] Civil society groups should partner with the International Budget Partnership. The IBP explains its advocacy:

If you want to fight poverty, you need to care about government budgets. As the specific plans for how public funds will be raised and spent, budgets are the government’s most powerful tool to meet the needs and priorities of a country and its people. The aim of the International Budget Partnership (IBP) is to ensure that government budgets are more responsive to the needs of poor and low-income people in society and, accordingly, to make budget systems more transparent and accountable to the public.

The IBP believes that the public has a right to comprehensive, timely, and useful information on how the government manages public funds. Our experience shows that when ordinary people have information, skills, and opportunities to participate, broader public engagement in government budget processes can promote substantive improvements in governance and poverty.

In order to achieve its goals, the IBP works in five major areas:

• Building budget analysis and advocacy skills through training and technical assistance
• Measuring and advancing transparency, accountability, and public participation in the budget process
• Contributing to strong and sustainable organizations by providing financial assistance for civil society budget work
• Enhancing knowledge exchange among civil society budget groups and other public finance stakeholders by acting as a hub of information on civil society budget work
• Building vibrant international and regional budget networks

The IBP and its civil society partners contribute to reforms in how governments around the world manage public funds so that:

• budget processes (how budgets are proposed, debated, implemented, and evaluated) are more transparent and open to public input;
• budget policies (who will pay what taxes, or how much money will go to specific programs) effectively address the needs of the poor and marginalized; and
• budget rules, regulations, and institutions are stronger and better able to resist corruption and mismanagement and ensure more effective and efficient use of public resources.

Relevant links: Code-NGO: PDAF Watch Philippine Center for Investigative Journalism: PDAF Flow Chart

Some Philippine civil society groups that are already partnering with the IBP are the Philippine Center for Investigate Journalism, Balay Mindanaw Foundation, Procurement. Watch Inc., Philippine Center for Civic Education and Democracy, Institute for Popular Democracy, Caucus of Development NGO Networks (CODE-NGO), and Concerned Citizens of Abra for Good Government.

[2] Civil society groups and private individuals can learn budget advocacy and monitoring through the IBP’s Open Budgets Game!
 
[3] Why should governments publish a citizens' guide to the budget? (From “Producing a Citizens' Guide to the Budget: Why, What and How?” by Murray Petrie and Jon Shields, OECD Journal on Budgeting, Volume 2010/2)

Access to information is a precondition for citizens to: understand how a government is using its entrusted powers to tax, borrow, and spend public resources; become involved in informed public debate during the budget process; and hold a government properly to account. By reporting and explaining budget decisions and the state of the public finances with simplicity and clarity, the government can help to demystify the budget beyond the often necessarily technically complex detail in the budget documentation. Otherwise, the job is left to civil society or the media, who are not always adequately equipped. It is also a good discipline for policy makers to explain themselves in simple, everyday language.

Publication of a citizens’ guide allows a government to explain in plain language the objectives of its budget and to supplement and complement other supporting material such as the budget speech, press releases, web pages, media appearances, etc. A guide provides a single place where the public can learn about the main features of the budget and gain access to more detailed reference sources. It also helps citizens to assess the impact on their own circumstances and on specific groups in society (including the effects on the burden of taxation, service provision and employment prospects).

Publication of a citizens’ guide to the budget is called for in the International Monetary Fund (IMF) Code of Good Practices on Fiscal Transparency (2007) under the principle that “fiscal information should be presented in a way that facilitates policy analysis and promotes accountability” (IMF, 2007a). The code stipulates specifically that: “A clear and simple summary guide to the budget should be widely distributed at the time of the annual budget.” A short paragraph in the explanatory IMF Manual on Fiscal Transparency (2007) lists some of the substantive and qualitative elements of a citizens’ guide (IMF, 2007).

[4] What countries currently publish a citizens’ guide to the budget? (Producing a Citizens’ Guide to the Budget: Why, What and How?,” by Murray Petrie and Jon Shields,OECD Journal on Budgeting, Volume 2010/2)

It appears that relatively few governments currently publish a citizens’ guide to the annual budget. Less than 20 concrete examples have so far been identified. A major source of information about current practice is the Open Budget Survey. The seven countries identified in the 2006 survey (based on 2005 data) were El Salvador, France, Korea, New Zealand, South Africa, Sweden and the United Kingdom. Two of these - New Zealand and the United Kingdom - publish summary information on the budget but do not call it a citizens’ guide.

The 2008 survey identified an additional ten countries that published a citizens’ guide or apparent equivalent: Angola, Colombia, Croatia, Georgia, Ghana, India, Norway, Russia, Uganda and Ukraine. The 2008 survey found that, of these 17 guides, ten were very informative, three were somewhat informative, and four were not very informative.

[5] Civil society groups and private individuals must pressure Congress or Malacanang to publish a citizens’ guide to the budget. The guide must expressly point out, describe, and explain, among other things, what are the (a) pork barrel allocations for senators and representatives, (b) lump sums, and (c) unprogrammed funds.

Producing a citizens’ guide to the budget should ideally be mandated by law. Or, if Congress and Malacanang are sensitive to the public anger over the pork barrel scam,  they should proactively produce the citizens’ guide to the budget, in cooperation with credible institutions like the UP National College of Public Administration and Governance.

If producing the citizens’ guide to the budget is mandated by law, safeguards must be placed to prevent the guide from simply being a “praise release.” For example, comments, critiques, or evaluation of the budget by civil society groups and institutions like the UP NCPAG must be included in the guide (at the very least, as annexes).

[6] Learn more about what a “citizens’ guide to the budget” is all about through these resources:

A Citizen’s Guide to the Federal Budget (IBP)
A Citizens’ Guide to Monitoring Government Expenditures (IBP)
Producing a Citizens’ Guide to the Budget (Organisation for Economic Co-operation and Development)
A Citizen’s Guide to the Federal Budget (John F. Kennedy Library)
Citizen’s Guide - New York State Division of the Budget
NYS DOB: Citizen’s Guide The Budget Process
Citizen’s Guide to the City’s Budget Process (City of San Diego)
2013 Citizen’s Guide To The Washington State Budget

[7] Philippine Center for Investigative Journalism articles

Part 1: PDAF racket rocks 'daang matuwid'
Sidebar 1: Pork a la PNoy

Part 2: Bailiwicks, not poor towns, grab slabs of House PDAF
Sidebar 2: Good pork, bad pork

Part 3: Senators' PDAF floods NCR, vote-rich provinces
Sidebar 3: Pork, 'daang matuwid' don't mix: One bidder, one PDAF project?

Part 4: Binay bags P200-M PDAF: Pork train to Malacañang?
Sidebar 4: LGUs ride piggyback on pork

Part 5: Bogus, favored NGOs fail to account for P770-M pork

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (06): Free resources from the Michigan Bar Journal

Since 1984, the State Bar of Michigan has been advocating the use of Plain English among lawyers and judges. Thanks in part to the efforts of the Michigan Bar, the US now has the Plain Writing Act of 2010 and the Plain Language in Health Insurance Act. Posted below are links to some great articles from the MBJ:

• Tips for Better Writing in Law Reviews (and Other Journals)
• Judges on Effective Writing: The Importance of Plain Language
• The 20 Most Common Sentence-Level Faults Among Legal Writers
• Clearing Up Ambiguity from a Series Modifier
• Writing to Persuade Judges
• A Federal Judge Takes On Legalese
• The Best Test of a New Lawyer's Writing
• Ensnaring Perceptions on Communication—Underlying Obstacles to Lawyers' Writing Plainly
• Plain-English Drafting for the Age of Statutes
• Guiding Principles for Restyling the Federal Rules of Civil Procedure (Part 1) 
•  Guiding Principles for Restyling the Federal Rules of Civil Procedure (Part 2)
• Learning to Loathe Legalese
• A Message to Law Students: Effective Writing Takes a Lifelong Commitment
• Seeking the Highest Level of Writing Competence

Surf to the chronological index of MBJ columns on Plain English, from 2013 down to 1984.

Free seminars: [1] “English Proficiency Course” (4 hours; for college students, K-to-12 teachers, other groups) [2] “Clear, concise English for effective legal writing” (3-5 hours; for Student Councils, academic organizations, fraternities, sororities, NGOs, LGUs, any interested group; test yourself with the interactive exercises) Seminars are for Metro Manila only. For more information or to schedule a seminar, please contact Atty. Gerry T. Galacio at 0927-798-3138. Be a better writer or editor through StyleWriter 4: this software checks 10,000 words in 12 seconds for hundreds of style and English usage issues like wordy and complex sentences, passive voice, nominalization, jargon, clichés, readability, spelling, etc. StyleWriter 4 graphs your style and sentence variety, and identifies your writing habits to give an instant view of your writing. You can learn to adjust your writing style to suit your audience and task. You can learn, for example, the writing style of Newsweek, Time, The Economist, and Scientific American. StyleWriter 4 is widely used in the US federal government (for example, the Environmental Protection Agency). It can be used by educators, students, and professionals in various fields - business, law, social or physical science, medicine, nursing, engineering, public relations, human resources, journalism, accounting, etc. Download your free 14-day trial copy now.

Proposed legislation (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. is 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.

Right of privacy between spouses: can your spouse open your social media accounts or read text messages on your smartphone without your consent?

Quick answer: No.

Reason: “Marital right of privacy” as explained by the Supreme Court in the case of “Cecilia Zulueta versus Court of Appeals and Alfredo Martin” (G.R. No. 107383, February 20, 1996).

Notice that the Zulueta case was decided way back in 1996 when very few Filipinos knew about the Internet. The World Wide Web had just been invented (in 1989) by Tim Berners-Lee; there was only Mosaic, the predecessor of our present-day browsers. But the Supreme Court’s ruling on the “marital right of privacy” still applies today.

Facts of the case:

Cecilia is married to Alfredo, a medical doctor. Thinking that Alfredo is involved in extramarital affairs, Cecilia entered his clinic on March 26, 1982. In the presence of her mother, a driver, and Alfredo’s secretary, she forcibly opened the drawers and cabinet in the clinic and took 157 documents consisting of private correspondence between Alfredo and his alleged paramours, greetings cards, canceled checks, diaries, Alfredo's passport, and photographs.

Cecilia wanted to use the documents and papers in two cases that she had filed against Alfredo: (1) legal separation; and (2) disqualification from the practice of medicine.

Alfredo files case against Cecilia with the Regional Trial Court of Manila

Alfredo asked the RTC to order Cecilia to return all the seized documents and papers. The RTC ruled in Alfredo’s favor, ordering Cecilia to return the documents and papers and to pay damages. It also prohibited Cecilia and her lawyer from using the documents and papers as evidence in the cases that she had filed against Alfredo.

(Alfredo later filed a disbarment case against Cecilia’s lawyer when he used the documents and papers in the case for Alfredo’s disqualification from the practice of medicine.)

Cecilia brought her case up to the Court of Appeals, but the court also ruled against her.

Supreme Court ruling on “marital right of privacy”

The Court ruled against Cecilia, saying that:

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring “the privacy of communication and correspondence [to be] inviolable” is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a “lawful order [from a court or when public safety or order requires otherwise, as prescribed by law.”Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any proceeding."

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. [boldfacing supplied]

The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other.

Related issues:

1. The Supreme Court’s ruling mentions “the duty of fidelity that each [spouse] owes to the other.” This refers to Article 68 of the Family Code which states: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.”

(The Family Code mentions “love” only twice: Article 68 and Article 220.)

2. If your spouse has opened and read, without your consent, your physical letters or your social media accounts, can you file a case against him or her under Article 290 of the Revised Penal Code?

Answer: No.

Reason: Marital exemption

The Revised Penal Code states:

Art. 290. Discovering secrets through seizure of correspondence. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding P500 shall be imposed upon any private individual who in order to discover the secrets of another, shall seize his papers or letters and reveal the contents thereof.

If the offender shall not reveal such secrets, the penalty shall be arresto mayor and a fine not exceeding P500.

The provision shall not be applicable to parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or study, nor to spouses with respect to the papers or letters of either of them.

Notice that the last paragraph above expressly states that Art. 209 does not apply to “spouses with respect to the papers or letters of either of them.”

3. “What happens to your social media accounts after you die?” (The Sun)

4. “The marital right to privacy in relation to the system of absolute community” (ACCRA Law)

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.

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 writSuch 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 XXIIIsuch 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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