Katrina Halili and Hayden Kho scandal: being under the influence of alcohol or drugs is a prohibited defense under RA 9262

For the past two weeks, the country has been gripped by news stories (print, radio, television, the Web) on the sordid details of the Katrina Halili and Hayden Kho scandal. Someone has accurately described this kind of news coverage and its effect on society as the “tabloidization of Philippine culture.” Even our Senate has jumped into the bandwagon by conducting hearings in “aid of legislation” on this issue. (It was actually Sen. Bong Revilla who started this all.)

Prohibited defense under RA 9262

What’s amazing is that some people like lawyers of the opposing parties, some senators and government officials, people in media, etc. do not know what Republic Act No. 9262 “Anti-Violence Against Women and Their Children Act of 2004” provides. People are discussing the issue of Hayden Kho’s alleged use of drugs at the time the sex videos were made. It seems that this alleged use of illegal drugs is being floated as Hayden Kho’s possible defense against Katrina Halili’s complaints. Some people are discussing habituality and aggravating circumstance in the alleged use of drugs.

Section 27 of RA 9262 expressly provides that “being under the influence of alcohol, any illicit drug, or any other mind-altering substance” is a prohibited defense. Simply stated, any man accused of violating RA 9262 cannot use as a defense that he was under the influence of alcohol or of drugs when he committed the act of violence against the woman.

“Persona non grata” resolutions against Hayden

Some local government units are also jumping onto the bandwagon by passing resolutions declaring Hayden Kho as “persona non grata” in their town or city. Meaning, Hayden is not welcome and cannot set foot in their town or city. (If I remember correctly, a female comedian was recently declared “persona non grata” by the City of Baguio for her insulting remarks against Igorots.)

Haven’t these LGUs been advised about the landmark 1919 ruling of the Supreme Court in the case of Villavicencio vs. Lukban? Our local government officials should also read the 1987 Constitution and its provisions on the freedom of mobility.

Do these LGUs really think that they can validly and legally enforce these resolutions against Hayden (or anyone for that matter)? One senator said last night that every town and city in the Philippines should pass these “persona non grata” resolutions against Hayden. Let me use some “argumentum ad absurdum” in discussing this issue. If indeed every town and city passed this kind of a resolution agaunst Hayden, does this mean that he can no linger live in the Philippines?

The only legal way a person can be prohibited from residing in a specific place is when a woman has been convicted in a concubinage case. This is the penalty of destierro imposed on the mistress. Please read my post on “Adultery, concubinage and psychological violence” (look for the link in the sidebar), the comments and my replies to the comments.

Lest I be misunderstood in my discussion about these “persona non grata” resolutions, let me state that I am not condoning in any way Hayden Kho’s actions. I just want to point out some silly, misinformed ideas and legally-defective arguments floating around this sordid Katrina Halili and Hayden Kho scandal.

Philippine law on household helpers; pending bills “Batas Kasambahay” or “Magna Carta for Household Helpers”

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There are more than six hundred thousand household helpers in the Philippines. And yet only a few families who employ household helpers know that the Philippines has laws (and pending bills) on the employment of househelpers. Our current laws for house helpers are Articles 141 up to 152 of the Labor Code of the Philippines. The said articles state:

Employment of Househelpers

Art. 141. Coverage. This Chapter shall apply to all persons rendering services in households for compensation.

“Domestic or household service” shall mean service in the employer's home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer's household, including services of family drivers.

Art. 142. Contract of domestic service. The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties.

Art. 143. Minimum wage.

Househelpers shall be paid the following minimum wage rates:

Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities;

Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and

Five hundred fifty pesos (P550.00) a month for those in other municipalities.

Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof.

Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993)

Art. 144. Minimum cash wage. The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance.

Art. 145. Assignment to non-household work. No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein.

Art. 146. Opportunity for education. If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper's compensation, unless there is a stipulation to the contrary.

Art. 147. Treatment of househelpers. The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper.

Art. 148. Board, lodging, and medical attendance. The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance.

Art. 149. Indemnity for unjust termination of services. If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.

If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days.

Art. 150. Service of termination notice. If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service.

Art. 151. Employment certification. Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.

Art. 152. Employment record. The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer.

Pending Senate bills: “Batas Kasambahay” or “Magna Carta for Household Helpers”

Several bills aimed at improving the lot of household helpers are pending in the Senate, namely:

[1] SBN-1631: Magna Carta of Household Helpers' or 'Batas Kasambahay'

An Act Providing for the Magna Carta of Household Helpers Filed on September 20, 2007 by Miriam Defensor-Santiago

[2] SBN-1141: Magna Carta of Household Helpers

An Act Instituting Policies Governing the Household Employment Industry, Establishing a Standard of Protection and Promoting the Welfare of Household Helpers Filed on July 4, 2007 by Aquilino Q. Pimentel Jr.

[3] SBN-77: Magna Carta of Household Helpers (Batas Kasambahay)

An Act Instituting Regulatory Policies for the Household Employment Industry, Establishing Standards of Protection and Promotion of Their Welfare and of Their Families, Amending for the... Filed on June 30, 2007 by Loren B. Legarda

Sen. Many Villar has also filed Senate Bill 2275 seeking to increase the minimum wage to P1,200 in Metro Manila; P950 in chartered cities and first-class municipalities; and P750 in other municipalities.

Features of Loren’s bill

Under the proposed Magna Carta for Household Helpers, authored by Sen. Loren Legarda, all domestic staff would be expressly guaranteed the right to just and humane working as well as living conditions, among other freedoms.

Notarized job contract

The bill mandates that a notarized job contract would have to be executed by and between the employer and househelper before the start of any service. This would cover the specific job terms and conditions, including a provision for annual pay increases, indicating the amount mutually agreed and fixed by the parties.

13th month pay, Philhealth coverage

Under the bill, all househelpers would be entitled to statutory pay rates, a 13th month pay equal to one month's salary and mandatory coverage by the Philippine Health Insurance Corp. (Philhealth), on top of existing protection by the Social Security System (SSS).

10 hours of work maximum per day

Househelpers would enjoy normal work hours not exceeding 10 hours every day. Any work they perform in excess would have to be paid extra. They would be entitled to at least eight hours of continuous rest every day, in addition to one-hour respites each for breakfast, lunch and dinner.

14 days annual vacation leave with pay

Househelpers would also work not more than six consecutive days every week. They would be entitled to 14 days annual vacation leave with pay.

Under Legarda’s bill, househelpers would likewise be entitled to basic necessities, including three full meals every day; adequate, private and safe sleeping quarters; as well as advances to cover work-related illnesses or injuries, subject to reimbursement by the SSS and Philhealth.

Legarda’s bill also sets a comprehensive standard for the decent treatment of househelpers. Their mistreatment, such as the deprivation of basic necessities as punishment or disciplinary action, would be totally forbidden.

The bill likewise prohibits the employment of househelpers via sub-contracting; bans recruitment and finder's fees at the househelper's expense; and disallows bonded labor, or the use of future services as collateral for an advance extended to the househelper.

The Ted Failon case (2): RA 7438 rights of persons under custodial investigation; When police officers “invite” you ...

I will be saying some negative things about police officers and the way they handled the investigation of Failon’s case. I have nothing personal about police officers. I have defended several DEU (Drug Enforcement Unit) officers before the People’s Law Enforcement Boards of Pasig and Mandaluyong and in criminal cases related to their work. (The functions of the DEU have been transferred to the PDEA.) Oftentimes, police officers who arrest drug pushers are harassed by the pushers and their relatives who file various criminal and administrative cases against them.

When I was in MLQU law school in the late 80’s, I had several classmates who were police officers (an investigator who’s now a councilor in a Metro Manila city, a police photographer nicknamed Oca who, before our classes started, always took the bullets out of his .38 caliber revolver, and a Special Action Force guy who sweated profusely every time he got called to recite in our Persons class). Later on, in JRC’s law school, one of our underclassmen was a police officer who became the top PNP general several years ago.

Several of Failon’s household helpers and in-laws were forcibly arrested without warrants two weeks ago. TV news coverage of these arrests showed the police officers handcuffing and holding one suspect by his collar and shoving him inside a police vehicle. The police even arrested one guy inside Trina Etong’s hospital room. When asked by reporters why these persons were being arrested, the police answered that these persons will be subjected to inquest proceedings and then charged. Later on, the police said that they were merely “inviting” these persons for questioning.

What do you do when police officers “invite” you for questioning?

This practice of police officers of picking somebody up under the guise of “inviting” that person for questioning is a widely-abused practice. First of all, just like any invitation, anyone can refuse to go with these police officers when he is “invited” for questioning.

Secondly, police officers have to comply with the provisions of Republic Act 7438, our law on the rights of persons under custodial investigation. RA 7438 provides in Section 2, sub-paragraph f, that custodial investigation includes the common police practice of “inviting” people for questioning. It is clear from the TV news reports that police officers who arrested Failon’s househelpers and relatives did not comply with RA 7438. Posted below are the provisions of this law which became effective in April 27, 1992.

Republic Act no. 7438 “An act defining certain rights of person arrested, detained or under custodial investigation as well as the duties of the arresting, detaining and investigating officers, and providing penalties for violations thereof.”

Section 1. Statement of Policy. - It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights.

Sec. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. - (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel.

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

(c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.

(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

As used this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

Sec. 3. Assisting Counsel. - Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes.

The assisting counsel other than the government lawyers shall be entitled to the following fees:

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies;

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less grave of grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital offense.

The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province comprising such municipality or city shall pay the fee: Provided, That the Municipal of City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees.

In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code.

Sec. 4. Penalty Clause. - (a) Any arresting public officer of employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.

The same penalties shall be imposed upon a officer or employee or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel.

(b) Any person who obstruct, persons or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, of from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape.

Sec. 5. Repealing Clause. - Republic Act No. No. 857, as amended, is hereby repealed. Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.

The Ted Failon case (1): what is obstruction of justice?

Since last week, our country has been gripped by the tragic story of the death of broadcaster Ted Failon’s wife. Currently, Failon and several others have been charged by the Quezon City police with “obstruction of justice.”

Please take note:

1. I strongly disagree with the QC police’s contention that a warrant of arrest is not necessary for violations of PD 1829. If the obstruction is being committed in the presence of the police, then a warrantless arrest can be made. But if the obstruction has already taken place several hours or days earlier, then a warrant of arrest is necessary.

2. The police must file the complaint for obstruction of justice with the fiscal’s office. After the fiscal has determined in a preliminary investigation that a probable cause exists, then he will file the information with the court. It is only the judge who can issue a warrant of arrest.

Posted below is the text of this Marcos-era law which took effect on January 16, 1981.

Presidential Decree No. 1829 “Penalizing Obstruction Of Apprehension And Prosecution Of Criminal Offenders”

WHEREAS, crime and violence continue to proliferate despite the sustained vigorous efforts of the government to effectively contain them;

WHEREAS, to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, it is necessary to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders;

NOW, THEREFORE, I, FERDINAND, E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law do hereby decree and order the following:

Sec. 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.

If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed.

Sec. 2. If any of the foregoing acts is committed by a public official or employee, he shall in addition to the penalties provided thereunder, suffer perpetual disqualification from holding public office.

Free concert for the benefit of street children

A free concert for the benefit of street children will be held on April 26, 7:00 PM at the University of the Philippines Diliman Film Center. This musical celebration is organized by the non-stock, non-profit, Christian organization Onesimo Foundation.

Swiss Filipino artist Ernie Opiasa will be joined by Armina Riethmüller, the Windsong Band, and the children of Onesimo Foundation in the concert “Reaching Out.”

Onesimo operates ten shelters (therapeutic communities) and drop-in centers in Metro Manila slum areas: at Quezon City’s Payatas, Frisco, Philcoa (2), Mendez, and F.Carlos; Malabon’s Letre and Manila’s Tondo and Quiapo (2). Onesimo has been registered since 1996 as a non-profit organization. It benefits from tax exemption and is licensed as a social institute by the Department of Social Welfare (DSWD).

Onesimo was founded by the couple Christian and Christine Schneider who came as missionaries from Servants Switzerland. The Schneiders speak Filipino as fluently as any native speaker. They lived in the slums for nine years and encountered street children who are suffering from poverty, physical abuse, and substance abuse. According to the couple, the children “have practically no chance to live with dignity, purpose and social respect. But … they have a claim on such a life. In order for them to experience the Christian faith, Onesimo seeks to encourage their self-confidence and initiative without alienating them from their surroundings.” It is for this reason that Onesimo remains in slum communities.

Why the name Onesimo? According to the Schneiders, Onesimus is the name of a young slave who became a friend of Paul. Onesimo Foundation wants children to be delivered from the kind of slavery that exists in slum areas. The couple have since returned to Switzerland with their own children and turned over the management of Onesimo in Manila to Filipinos. From Basel, the couple coordinates volunteer work in Europe with the leadership team in Manila, and they oversee the communication between investors and contacts in Manila, such as the managing committee, the supervisor, and sponsored children.

Onesimo Foundation
#33 T.Sora Ave.,Brgy. Tandang Sora,
Quezon City. Philippine 1104
Phone/Fax: 927 67 19 or 453 77 27
S.E.C.Reg. No. A1996-01786
DSWDLicense No. 2002-NCR-CW-001

The Internet, chat rooms, and marital infidelity

Probably the most read and most commented post in this blog is “Adultery, concubinage, psychological violence and marital infidelity.” Considering that marriage and the family are Biblical institutions, it is very tragic that extra-marital affairs are rampant. Please read my Salt and Light blog posts which discuss the statistics, causes and consequences of extra-marital affairs:

• Surviving Marital Infidelity
• The grass is not greener on the other side
• "Sad Movies Always Make Me Cry"
• Marital infidelity: causes, consequences and conclusions
• Priceless counsel from a bargain sale book: “How to save your marriage alone”

Profile of Filipino users of the Internet

In a recent study, Yahoo! and consumer information group Nielsen revealed that:

1. There are 20 million Filipino users of the Internet.
2. The majority of Filipino Internet users range in ages from 10 to 29.
3. Email (63%), Instant Messaging (63%) and Search (58%) are the most common online activities for Filipino internet users followed by searches (58%), playing games online (53%), social network site (51%), download/upload of digital photos (42%), internet radio (28%), down-/upload music files (25%), read news online (24%), internet SMS (23%), online banking (3%), purchased products online (3%).
4. Social networking is a key online activity with 51 % of the survey respondents claiming to have visited a social networking site in the past month.

How the Internet is impacting society

If you want to learn more about how the Internet is impacting society, please read “The Psychology of Cyberspace” by John Suler, Ph.D. Department of Psychology, Science and Technology Center, Rider University. Among Suler’s interesting articles are:

• The Online Disinhibition Effect: While online some people open up to reveal all sorts of personal feelings and thoughts. Others act out inappropriately in ways they never would in-person. This article explains six factors that contribute to this "disinhibition" effect: dissociative anonymity, invisibility, asynchronicity, solipsistic introjection, dissociative imagination, and minimizing authority, as well as how online disinhibition and suspicion are related to the altering of self-boundary. This revision includes a section about whether the "true self" appears online as a result of disinhibition.
  
  
• The Basic Psychological Features of Cyberspace: These features can make online encounters very different than those in the "real" world: reduced sensations, texting, identity flexibility, altered perceptions, equalized status, transcended space, temporal flexibility, social multiplicity, recordability, media disruption . This revision mentions current communication technologies and emphasizes these psychological features as elements of a conceptual model for a psychology of cyberspace.
  
  
• The Final Showdown Between In-Person and Cyberspace Relationships: We develop relationships by hearing, seeing, feeling, intuiting, even smelling and tasting (!) each other. Cyberspace and in-person encounters can be quite different on these dimensions of relating. Those differences have a dramatic effect on friendships and romances. This revision includes minor modifications throughout the article, as well as a new section on defending text and the body.
  
  
• Do Boys Just Wanna Have Fun?: Gender-Switching in Cyberspace: Why do people switch their gender in cyberspace? Is it possible to detect someone who is faking his gender?
  
  
• Mom, Dad, Computer: Transference Reactions to Computers: People may not even realize it, but they may be reacting to their computer as if it is their mother, father, or sibling. This article explores the various twists and turns in people's transference reactions to computers and cyberspace.
  
  
• The Black Hole of Cyberspace: The internet is supposed to respond to us. But sometimes it doesn't. When we receive no reply (especially to an e-mail message), that black hole can draw out of us all sorts of anxieties and insecurities.
  
  
• Transient and Long Term Online Relationships: The interactive power of the internet gives everyone an opportunity to meet people - sometimes in transient encounters, sometimes in long term friendships and romances.

Bored, lonely housewives and the temptations of online affairs

While the Internet does provide a lot of benefits for students, professionals, government and business, there are dangers that can entangle any person. Several people have e-mailed me about their marriages having been rocked or completely broken up because the husband or the wife had an extra-marital affair with someone he or she met in a chat room.

Probe Ministries, in an article by Kerby Anderson, points out a danger that lonely and bored housewives are falling into, that is, online affairs or the allure of cyber-relationships. I have provided emphasis by boldfacing and sub-headings to Anderson's article:

Peggy Vaughn is the author of “The Monogamy Myth” and also serves as an expert for America Online on problems caused by infidelity. She predicts that one “role of the Internet in the future will be as a source of affairs.” She is writing a second book on the subject of adultery and says she could base half of it just on the letters she receives from people who started an affair online.

What is an online affair?

An online affair (or cyberaffair) is an intimate or sexually explicit communication between a married person and someone other than their spouse that takes place on the Internet. Usually this communication takes place through an online service such as America Online or CompuServe. Participants usually visit a chat room to begin a group conversation and then often move into a one-to-one mode of communication. Chat room categories range from “single and liking it” to “married and flirting” to “naked on the keyboard.”

How women get caught up in online affairs

Women in a chat room are often surprised at what develops in a fairly short period of time. At first the conversation is stimulating, though flirtatious. Quickly, however, women are often confronted with increasingly sexual questions and comments. Even if the comments don’t turn personal, women find themselves quickly sharing intimate information about themselves and their relationships that they would never share with someone in person. Peggy Vaughn says, “Stay-at-home moms in chat rooms are sharing all this personal stuff they are hiding from their partners.” She finds that the intensity of women’s online relationships can “quickly escalate into thinking they have found a soulmate.”

Online affairs differ from physical world affairs in some ways, but are similar in others. Cyberaffairs are based upon written communication where a person may feel more free to express herself anonymously than in person. Frequently the communication becomes sexually graphic and kinky in ways that probably would not occur if a real person were hearing these comments and could act on them. Participants in an online affair will often tell their life stories and their innermost secrets. They will also create a new persona, become sexually adventurous, and pretend to be different than they really are.

The quest for a pure, passionate marriage

Please take time to read my Salt and Light blog post titled “And the bride wore white.” In that post, I discussed among others “Pursuing the Pearl” (a book by Dannah Gresh). In this book, Dannah discusses what she calls “The Enemy’s Fake Pearls” which are [1] status and stuff; [2] social acceptance; [3] giving up and starting over; [4] pride and dreams.

Dannah warns her readers: “Sexual impurity is a zero tolerance arena. You are on shaky ground if there are emotional bonds being created between you and another man (or your husband and another woman).” Dannah explains that these bonds begin with little things like:

• Innocently having lunch alone with a man
• Seeking advice from a man about personal issues, especially marital issues
• Seeking or accepting frequent praise or affirmation from the same man
• Being or becoming comfortable with being alone in an office or a home together
• Intentionally seeking out time to be with this man
• Manipulating your schedule to see him
• Spending time fantasizing about him

What’s my point here? If you are a husband or wife who values your marriage and family, stay away from chat rooms!

Heirs and inheritance (Part 14): Article 176 Family Code on how to compute the inheritance of legitimate and illegitimate children

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An illegitimate child gets only 50% of what a legitimate child is entitled to

Through an e-mail, I was informed of some confusion in the amount of inheritance an illegitimate child is supposed to get from his biological father or mother. Some blogs and websites say that an illegitimate child will get as inheritance exactly what a legitimate child will get. This is totally erroneous because of the clear wording of Article 176 of the Family Code. The article states:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (As amended by Republic Act 9255, approved February 24,2004; emphasis by boldfacing supplied)

What does the last sentence of Article 176 clearly say? “The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.” So how come these blogs and websites say that an illegitimate child will get exactly what a legitimate child will get by way of inheritance?

The books on civil law by the late Justice Edgardo L. Paras are still the premier textbooks for law students and lawyers. In his Pre-Week Handbook on Civil Law (pages 274 and 275, 1989 Edition), Justice Paras gives an example of how to compute the legitimes of legitimate and illegitimate children:

Special Rule If Legitimate and Illegitimate Children Survived Together, With or Without the Surviving Spouse

1. First divide the estate among them in the proportion of 10, 5 (10 — for each legitimate child, 10 — for the surviving spouse, 5 — for each illegitimate child) — PROVIDED that with this proportion, the legitimes of the legitimate children and of the surviving spouse are NOT decreased. (Reason: the intestate shares are either the SAME or GREATER than the legitimes; NEVER LESSER).

2. If said legitimes are impaired, just give the legitimes – and these will also be their INTESTATE shares.

Examples

Intestate Estate = Php 15,000.00

Survivors: 1 leg- child, 1 illegitimate child

Give their intestate shares.

ANS. Apply 10, 5

I legitimate child = 10 shares

1 illegitimate child = 5 shares

Total: 15 shares

15 shares = Php 15,000.00

1 share = Php 1,000.00

Therefore: 1 legitimate child = 10 (Php 1.000.00) = P10,000.00

1 illegitimate child = 5 (PI ,000.00) = Php 5,000.00

An algebraic way of presenting the example of Justice Paras is this: Let X be the amount of legitime for the legitimate child and X/2 be the legitime of the illegitimate child.

X + X/2 = Php 15,000.00

(2X + X)/2 = Php 15,000.00

3X/2 = Php 15,000.00

3X = Php 30,000.00

X = Php 10,000.00 (the share of the legitimate child)

x/2 = Php 5,000.00 (the share of the illegitimate child)

Let’s say that the heirs are the surviving spouse, three legitimate children and one illegitimate child. Let’s say the estate (the totality of the property left by the deceased spouse) is Php 200,000.00. First of all, deduct 50% or Php 100,00.00 as the surviving spouse's share in the conjugal property. The remaining Php 100,000.00 will then be divided among the heirs (the surviving spouse is counted as one child).

The solution goes like this:

Let X be the amount of legitime for each of the legitimate children and the surviving spouse.

X (surviving spouse) + (legitimate children) X + X + X + (one illegitimate child) X/2 = Php 100,000.00

4X + X/2 = Php 100,000.00

4X/1 + X/2 = Php 100,000.00

9X/2 = Php 100,000.00

X = Php 22,222.22 (the share of each of the legitimate children and of the surviving spouse)

X/2 = Php 11,111.11 (the share of the illegitimate child in view of Article 176)

Back in the early 1970’s, I lost my NSDB science scholarship in UP Diliman because I failed Physics 41 and Engineering Science I, and I barely passed Math 17. If you think my mathematical solutions are wrong, hey, feel free to comment!

A unique way of dividing the conjugal property: Cambodian husband saws house in half

The Family Code of the Philippines provides for the grounds and procedures in the dissolution and liquidation of the community property or the conjugal partnership. These provisions are:

Dissolution of Absolute Community Regime

Article 99 Causes and effects of termination of ACP
Article 100 Effects of separation de facto on the ACP
Article 101 Abandonment or failure to comply with obligations
Liquidation of the Absolute Community Assets and Liabilities

Article 102 Procedure in liquidation, inventory and payment of obligations of the ACP
Article 103 Liquidation of ACP upon death of either spouse
Article 104 Liquidation of community properties of two or more marriages

Dissolution of Conjugal Partnership of Gains

Article 126 Causes and effects of termination of CPG
Article 127 Separation in fact, effects on CPG
Article 128 Situations under this Article; abandonment

Liquidation of the Conjugal Partnership Assets and Liabilities

Article 129 Steps in liquidating the CPG
Article 130 Liquidation of CPG upon death of either spouse
Article 131 Liquidation of CPG properties of two or more marriages
Article 132 Applicability of Rules of Court
Article 133 Support during liquidation of CPG

What happens to the conjugal property if a marriage is declared null and void?

Annulment refers to voidable marriages, while declaration of nullity refers to void marriages. When a marriage is annulled or declared void, the Supreme Court Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages provides in Section 21 that:

Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes.

Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Articles 50 and 51 of the Family Code mentioned above state:

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.

What does “presumptive legitime” mean?

The term “presumptive legitime” was mentioned several times above. Simply stated, whatever the children are entitled to receive by way of inheritance “computed as of the date of the final judgment of the trial court” must be given to them. Otherwise, the decree of nullity will not be issued or set aside if already issued.

What about if the parents live on for a number of years and then die? Well, then, the children will still receive what they are entitled to inherit minus what they have already received as their presumptive legitimes.

A Cambodian husband’s an interesting way of dividing the conjugal property

These provisions of the Family Code are quite clear. You might be interested however in a unique way a couple in Cambodia solved their problem of dividing up their property (a wooden house). According to an Associated Press report published in USA Today, the man brought his relatives, sawed the house in half and brought his share of the house to his parents’ place nearby. The 18-year marriage ended in divorce over the man’s allegations about his wife’s extramarital affair. Read the complete story of this Cambodian couple.

Mandatory drug testing constitutional for students and employees but not for senators and persons accused of crimes

The Supreme Court, through a unanimous decision dated November 3, 2008 and penned by Justice Presbitero J. Velasco, Jr, declared as unconstitutional the provisions of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) that require mandatory drug testing of candidates for senator and persons accused of crimes.

The Court, however, upheld the constitutionality of the law insofar as random drug testing for secondary and tertiary school students, as well as for officials and employees of public and private offices, is concerned.

Separate petitions questioning the constitutionality of these portions of RA 9165 were filed by Sen. Aquilino Pimentel Jr, Atty. Manuel Laserna and the Social Justice Society. Sen. Pimentel also questioned the validity of COMELEC Resolution No. 6486, alleging that the same created an additional qualification for candidates for senators in addition to those provided in the 1987 Constitution by requiring that the candidates be certified as drug-free.

Highlights of the Supreme Court’s decision

1. The unconstitutionality of Sec. 36(g) of RA 9165 “is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.”

In declaring Sec. 36(g) unconstitutional, the Court said that the same “unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed senator-elect,” adding that the assailed provision of the law and the COMELEC Resolution “add another layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate.”

2. There is no valid justification for mandatory drug testing for persons accused of crimes, as required by Sec. 36(f) of the law, as a mandatory drug testing in the case of persons charged with a crime before the prosecutor’s office “can never be random or suspicion-less.”

The Court said, “When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will.” To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.”

3. Mandatory drug testing of secondary and tertiary school students is constitutional. The Court, taking note of the proliferation of prohibited drugs in the country which threaten “the well-being of the people, particularly the youth and school children who usually end up as victims,” stated that until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools “is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected.”

4. Mandatory but random drug testing is justifiable for officers and employees of public and private offices. As the Court ruled, “The need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest under the premises.”

Safeguards against the violation of rights of students and employees

The Court, taking into account the reduced expectation of privacy on the part of employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of random drug testing, held that the challenged drug test requirement for those employed in public and private offices is, under the limited context of the case, reasonable and constitutional.

The Court also noted that Sec. 94 of RA 9165 charges the Dangerous Drugs Board to issue, in consultation with the Departments of Health, Interior and Local Government, Education, and Labor and Employment, among other agencies, the Implementing Rules and Regulations (IRR) necessary to enforce the law. The Court ruled that “in net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.”

Heirs and inheritance (Part 10): Can nephews and nieces inherit from their grandparents or from their unmarried uncles or aunts?

Summary / Definition of terms: 1. The law that governs issues on inheritance is the New Civil Code of the Philippines (NCC), not the Family Code. “Testate or testamentary succession” refers to situations where the person dies leaving a last will. “Legal or intestate succession” refers to situations where the person died without a last will. The person who dies and whose property is to be divided is called the “decedent.” The person who dies leaving a last will is called the “testator.” 2. If a person dies intestate (without a will), without a spouse, parents, legitimate or illegitimate children, then the collateral relatives like brothers and sisters, nephews and nieces will inherit. 3. Right of representation: Nephews and nieces already alive when the aunt or uncle died can inherit by representing their predeceased parents. 4. Iron barrier: If the nephews and nieces are illegitimate, then they are prohibited by Article 992 NCC from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents. 5. Grandnephews and grandnieces in the collateral line cannot inherit by right of representation.

I have been asked several times about the right of nephews and nieces to inherit from their deceased grandparents or unmarried uncles or aunts. For example, I received this inquiry several months ago:

I have an aunt, Rowena, with no surviving ascendants, who never married, and has no legitimate or illegitimate children. She is survived by a younger sister, Josefa, a widower. Rowena’s other siblings, two brothers and another sister, have died.

All of Rowena’s siblings, Josefa and the three deceased, have children.

In case Rowena dies, who will inherit her estate? Josefa alone? Or Josefa jointly with the children of Rowena’s deceased brothers and sisters (meaning the nephews and nieces)?

The New Civil Code of the Philippines (NCC), not the Family Code, governs the issues on inheritance. Testate or testamentary succession refers to situations where the person dies leaving a will (or testament). Legal or intestate succession refers to situations where the person died without a will. The person who dies and whose property is to be divided is called the decedent. The person who dies leaving a will is called the testator. The specific laws on inheritance are:

Title IV. Succession (Articles 774 up to 1105)
Chapter 2. Testamentary Succession (Articles 774 up to 959)
Chapter 3 Legal or Intestate Succession (Articles 960 up to 1014)
Chapter 4. Provisions Common To Testate and Intestate Successions (Articles 1015 up to 1105)

If a person dies intestate, without a spouse, parents, legitimate or illegitimate children, then the collateral relatives (brothers and sisters, nephews and nieces) will inherit

Articles 1003 to 1010 are the NCC’s governing rules on the right of collateral relatives to inherit when a person dies intestate (without a last will):

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.

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.

The “iron barrier” between the legitimate and illegitimate sides of the family

Update as of September 15, 2019: The Supreme Court is set to discuss Article 992 of the Civil Code which says an illegitimate child has no right to inherit from the legitimate relatives of his father or mother. Supreme Court tackles inheritance rights of illegitimate children Experts to SC: Strike down law that discriminates vs illegitimate children

Article 992 of the NCC states:

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

This is known as the “iron barrier” that separates the legitimate and illegitimate sides of a family. Thus, in the example I cited at the top of this post, if the nephews and nieces are illegitimate, then they are prohibited by Article 992 from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents.

This barrier may sound harsh and unfair to some people. For a fuller discussion of the “iron barrier,” please read the Supreme Court decision in Anselma Diaz vs. IAC, G.R. No. L-66574 February 21, 1990.

Right of representation

Coming back to the question posted above, can these nephews and nieces whose parents predeceased (died before) their aunt Rowena died have the right to inherit from her? The legal issue here is the right of representation that is governed by Articles 970 to 977 of the New Civil Code of the Philippines (NCC). Let’s take note first of Article 1025 NCC which states:

“In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41.”

The wording of Article 1025 has caused some confusion. A lot of lawyers will tell you that these nephews and nieces do not have the right to inherit since their parents predeceased the aunt. These lawyers will emphasize the phrase “no exception” as discussed in the book “Civil Code of the Philippines Annotated, Volume III, Wills and Succession” by Justice Edgardo Paras. As Justice Paras says in page 474 of his book:

“Even in case of representation, the representative must already be alive or at least conceived at the time the succession opens. He himself must be capable of succeeding the decedent.”

Also, civil law expert Desiderio P. Jurado says in pages 480 and 481 of his book “Comments and Jurisprudence on Succession” that “it is essential that the representative must be living at the moment the succession opens.”

Nephews and nieces already alive when the aunt or uncle died can inherit by representing their predeceased parents

The proper interpretation of Article 1025 is this:

Were the nephews and nieces already alive when the succession opened, that is, when the aunt died? If yes, then they have the right to inherit by representing their parents. They will inherit together with the surviving brothers and sisters of the aunt. Their share is whatever the share of each brother or sister, to be divided equally among them.

For another example, let’s say there are five brothers and sisters A, B, C, D and E. Then A died before E, leaving four children who are all alive at the time their aunt E died. Let’s call the four children (nephews and nieces of E) as U,V, W and X. Let’s say that each of the brothers and sisters (including A who predeceased E) is entitled to Php 500,000. as their share in the inheritance on a per capita basis. The four children (the nephews and nieces) will then divide among themselves the Php 500,000. share of A on a “per stirpes” basis.

“Per stirpes” and “per capita” division of the inheritance

The “per stirpes” basis means that the four children’s individual shares will not be equal to the share of the remaining siblings. The NCC speaks of shares “per capita” and “per stirpes.” The four siblings (A, B,C and D) are entitled to inherit from E on a per capita basis. Since A has died, his children (nephews and nieces U,V, W and X) will inherit by right of representation of their father A. Their share in the inheritance will be on a per stirpes basis.

In simple terms, the shares of the siblings (B, C and D) who are still alive are greater than that of the nephews and nieces U,V, W and X. This is because they will inherit fully their share while the nephews and nieces will divide among themselves the respective share that was supposed to go to A.

Grandnephews and grandnieces cannot inherit by right of representation (collateral line)

As I said, the right of representation is discussed in Articles 970 to 977 of the NCC. What about grandnephews and grandnieces? Well Article 972 provides that, in the collateral line, the right of representation extends only to nephews and nieces. In other words, grandnephews and grandnieces cannot inherit by right of representation from their unmarried great-uncles or great-aunts.

On a related issue, can great-grandchildren inherit from their great-grandparent by right of representation? Yes, as long as they are not excluded by the “nearer excludes farther” principle, and that they were already alive when the great-grandparent died. This principle means that if the father or mother of these great-grandchildren are still alive, the father or mother will inherit because they are nearer in degree to the great-grandparent.

Example of testate succession (inheritance through a will)

Situation: the unmarried aunt or uncle has a surviving parent, two legitimate siblings and several illegitimate siblings, and he/she wants to have a last will.

In intestate succession, the law provides who the compulsory heirs are (that is, who are legally entitled to inherit). In testate succession, the testator cannot simply give his or her properties to anyone. The NCC enumerates who the compulsory heirs are; they cannot be deprived of their legitime except in valid cases of disinheritance (please read my posts on disinheriting children and descendants, legitimate as well as illegitimate and disinheriting your spouse).  

Under Article 887, the following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

Thus, in the situation I described above, the only compulsory heir of the unmarried aunt or uncle is his or her surviving parent. The legitimate and illegitimate siblings are not compulsory heirs and therefore can be left out in the will.

What if the unmarried uncle or aunt wants to give these siblings (or some other persons) something? In this situation, under Article 889 NCC, the unmarried uncle or aunt must give 50% of the properties to his or her compulsory heir (the surviving parent) as the legitime. The remaining 50% is called the free portion and the testator can give this to whoever he or she wants to, with certain exceptions provided under Article 1027 NCC. Please read Articles 866 to 914 NCC for an enumeration of the legitimes and compulsory heirs.

Questioning the legitimacy of a child, simulation of birth, cancellation of birth certificates

Articles 164 and 167 of the Family Code establish the legitimacy of a child born during a marriage:

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

Grounds for questioning the legitimacy of a child

Article 166 of the Family Code provides for the grounds for impugning (questioning) the legitimacy of a child:

Art. 166. Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

Periods within which to question the legitimacy of a child; who may question legitimacy

Articles 170 and 171 provide for the periods within which the court action for questioning the legitimacy of a child should be filed and the parties who can file such action:

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.

Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.

Can the action to question the legitimacy of a child be filed beyond the periods provided by Article 170?

This question was raised in the 2000 case of “Teofista Babiera, petitioner, vs. Presentacion B. Catotal, respondent.” The Supreme Court clarified that:

1. Articles 170 and 171 of the Family Code apply to instances in which the father impugns the legitimacy of his wife’s child. The provisions, however, presuppose that the child was the undisputed offspring of the mother.

These articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. These articles do not contemplate a situation where a child is alleged not to be the child of nature or biological child of a certain couple.

2. A birth certificate may be ordered cancelled upon adequate proof that it is fictitious. Thus, void is a certificate which shows that the mother was already fifty-four years old at the time of the child's birth and which was signed neither by the civil registrar nor by the supposed mother. Because her inheritance rights are adversely affected, the legitimate child of such mother is a proper party in the proceedings for the cancellation of the said certificate.

Facts of the case

Briefly, Presentacion B. Catotal (or Presentacion, for brevity) questioned the authenticity of the birth certificate of Teofista Babiera (Teofista for brevity) as to the identity of her biological parents, Eugenio and Hermogena Babiera. Presentacion claimed that Teofista, instead of being her biological sister, was actually the child of a house helper who made it appear in the birth certificate that Teofista was the Babiera couple’s offspring.

Presentacion claimed that the birth certificate of Teofista Guinto was void ab initio, as it was totally a simulated birth, the signature of informant forged, and it contained false entries, to wit:

(a) The child is made to appear as the legitimate child of the late spouses Eugenio Babiera and Hermogena Cariñosa, when she is not;

(b) The signature of Hermogena Cariñosa, the mother, is falsified/forged. She was not the informant; (c) The family name BABIERA is false and unlawful and her correct family name is GUINTO, her mother being single;

(d) Her real mother was Flora Guinto and her status, an illegitimate child;

(e) The birth certificate was patently a simulation of birth, since it was clinically and medically impossible for the supposed parents to bear a child in 1956 because of the age of the alleged parents, Hermogena being 54 years old and the Eugenio being 65 years old.

Presentacion asked the court to declare the certificate of birth of Teofista as void, invalid and ineffective and for the cancellation of her birth certificate.

Teofista, on the other hand, countered that:

(1) Presentacion’s petition stated no cause of action, it being an attack on the legitimacy of the respondent as the child of the spouses Eugenio Babiera and Hermogena Cariñosa Babiera;

(2) Presentacion had no legal capacity to file the instant petition pursuant to Article 171 of the Family Code; and

(3) The petition was barred by prescription in accordance with Article 170 of the Family Code.

Teofista also presented her Certificate of Birth, Certificate of Baptism, and Student's Report Card which showed she and Presentacion were sisters of the full-blood, they being the offspring of spouses Eugenio Babiera and Hermogena C. Babiera.

Ruling of the Court of Appeals

The CA held that the evidence adduced during trial proved that Teofista was not the biological child of Hermogena Babiera. It also ruled that no evidence was presented to show that Hermogena became pregnant in 1959. It further observed that she was already 54 years old at the time, and that her last pregnancy had occurred way back in 1941. The CA noted that the supposed birth took place at home, notwithstanding the advanced age of Hermogena and its concomitant medical complications. Moreover, Teofista’s Birth Certificate was not signed by the local civil registrar, and the signature therein, which was purported to be that of Hermogena, was different from her other signatures.

The CA also deemed inapplicable Articles 170 and 171 of the Family Code, which stated that only the father could impugn the child's legitimacy, and that the same was not subject to a collateral attack. It held that said provisions contemplated a situation wherein the husband or his heirs asserted that the child of the wife was not his. In this case, the action involved the cancellation of the child’s Birth Certificate for being void ab initio on the ground that the child did not belong to either the father or the mother.

Ruling of the Supreme Court (excerpts)

The Court, in affirming the CA decision, explained that:

1. Article 171 of the Family Code is not applicable to the present case. A close reading of this provision shows that it applies to instances in which the father impugns the legitimacy of his wife’s child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner.

In other words, the prayer herein is not to declare that Teofista is an illegitimate child of Hermogena, but to establish that the former is not the latter's child at all. Verily, the present action does not impugn Teofista’s filiation to Spouses Eugenio and Hermogena Babiera, because there is no blood relation to impugn in the first place.

2. Teofista contends that the action to contest her status as a child of the late Hermogena Babiera has already prescribed. She cites Article 170 of the Family Code which provides the prescriptive period for such action.

This argument is bereft of merit. The present action involves the cancellation of Teofista’s Birth Certificate; it does not impugn her legitimacy. Thus, the prescriptive period set forth in Article 170 of the Family Code does not apply. Verily, the action to nullify the Birth Certificate does not prescribe, because it was allegedly void ab initio.

3. Teofista argues that the evidence presented, especially Hermogena’s testimony that petitioner was not her real child, cannot overcome the presumption of regularity in the issuance of the Birth Certificate.

While it is true that an official document such as petitioner’s Birth Certificate enjoys the presumption of regularity, the specific facts attendant in the case at bar, as well as the totality of the evidence presented during trial, sufficiently negate such presumption.

First, there were already irregularities regarding the Birth Certificate itself. It was not signed by the local civil registrar. More important, the Court of Appeals observed that the mother’s signature therein was different from her signatures in other documents presented during the trial.

Second, the circumstances surrounding the birth of petitioner show that Hermogena is not the former's real mother. For one, there is no evidence of Hermogena’s pregnancy, such as medical records and doctor’s prescriptions, other than the Birth Certificate itself. In fact, no witness was presented to attest to the pregnancy of Hermogena during that time. Moreover, at the time of her supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have given birth at such a late age, it was highly suspicious that she did so in her own home, when her advanced age necessitated proper medical care normally available only in a hospital.

The most significant piece of evidence, however, is the deposition of Hermogena Babiera which states that she did not give birth to petitioner, and that the latter was not hers nor her husband Eugenio’s.

Relying merely on the assumption of validity of the Birth Certificate, Teofista has presented no other evidence other than the said document to show that she is really Hermogena’s child. Neither has she provided any reason why her supposed mother would make a deposition stating that the former was not the latter's child at all.

All in all, we find no reason to reverse or modify the factual finding of the trial and the appellate courts that Teofista was not the child of Eugenio and Hermogena Baviera.

Notes: The Supreme Court reiterated these rulings in the 2001 case of Lee et al vs. Court of Appeals et al.

The picture at the top of this post is from ChristianPhotos.Net (Free High Resolution Photos for Christian Publications).

Sexual infidelity or promiscuity does not constitute psychological incapacity

In the case of David B. Dedel Versus Court of Appeals And Sharon L. Corpuz-Dedel a.k.a. Jane Ibrahim decided in 2004, the Supreme Court ruled that:

1. Sexual infidelity or promiscuity does not constitute psychological incapacity;

2. Emotional immaturity and irresponsibility cannot be equated with psychological incapacity.

3. The trial court does not have authority to dissolve a church marriage since that authority is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church.

The Court also clarified the differences between the grounds for declaration of nullity of marriage and for legal separation.

Facts of the case

1. Petitioner David B. Dedel (“David”) met respondent Sharon L. Corpuz Dedel (“Sharon”) while he was working in the advertising business of his father. The acquaintance led to courtship and romantic relations, culminating in the exchange of marital vows before the City Court of Pasay on September 28, 1966. The civil marriage was ratified in a church wedding on May 20, 1967.

The union produced four children, namely: Beverly Jane, born on September 18, 1968; Stephanie Janice born on September 9, 1969; Kenneth David born on April 24, 1971; and Ingrid born on October 20, 1976. The conjugal partnership, nonetheless, acquired neither property nor debt.

2. David alleged that during the marriage, Sharon turned out to be an irresponsible and immature wife and mother. She had extra-marital affairs with several men: a dentist in the Armed Forces of the Philippines; a Lieutenant in the Presidential Security Command and later a Jordanian national.

Sharon was once confirmed in the Manila Medical City for treatment by Dr. Lourdes Lapuz, a clinical psychiatrist. David alleged that despite the treatment, Sharon did not stop her illicit relationship with the Jordanian national named Mustafa Ibrahim, whom she married and with whom she had two children. However, when Mustafa Ibrahim left the country, Sharon returned to David bringing along her two children by Ibrahim. David accepted her back and even considered the two illegitimate children as his own. Thereafter, on December 9, 1995, Sharon abandoned David to join Ibrahim in Jordan with their two children. Since then, Sharon would only return to the country on special occasions.

3. Finally, giving up all hope of a reconciliation with Sharon, David filed on April 1, 1997 a petition seeking the declaration of nullity of his marriage on the ground of psychological incapacity, as defined in Article 36 of the Family Code, before the Regional Trial Court of Makati City, Branch 149. Summons was effected by publication in the Pilipino Star Ngayon, a newspaper of general circulation in the country considering that Sharon did not reside and could not be found in the Philippines.

David presented Dr. Natividad A. Dayan, who testified that she conducted a psychological evaluation of petitioner and found him to be conscientious, hardworking, diligent, a perfectionist who wants all tasks and projects completed up to the final detail and who exerts his best in whatever he does.

On the other hand, Dr. Dayan declared that Sharon was suffering from Anti-Social Personality Disorder exhibited by her blatant display of infidelity; that she committed several indiscretions and had no capacity for remorse, even bringing with her the two children of Mustafa Ibrahim to live with petitioner. Such immaturity and irresponsibility in handling the marriage like her repeated acts of infidelity and abandonment of her family are indications of Anti-Social Personality Disorder amounting to psychological incapacity to perform the essential obligations of marriage.

4. After trial, the Makati City RTC granted the petition, declaring the civil and church marriages between David and Sharon celebrated on September 28, 1966 and May 20, 1967 null and void on the ground of psychological incapacity on Sharon’s part to perform the essential obligations of marriage under Article 36 of the Family Code

5. The Office of the Solicitor General (OSG) appealed the decision to the Court of Appeals. The CA set aside the judgment of the Makati City trial court and ordered the dismissal of the petition for declaration of nullity of marriage.

When his Motion for Reconsideration was denied, David then appealed to the Supreme Court. The SC upheld the decision of Court of Appeals by stating:

Sharon's sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity or sexual promiscuity.

Ruling of the Supreme Court (excerpts)

1. The main question for resolution is whether or not the totality of the evidence presented is enough to sustain a finding that respondent is psychologically incapacitated. More specifically, does the aberrant sexual behavior of respondent adverted to by petitioner fall within the term “psychological incapacity.”

2. “Psychological incapacity” should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.

There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity of inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate.

3. The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code.

If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.

4. Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinion of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable.

5. The difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. In this case, Sharon’s sexual infidelity can hardly qualify as being mentally or psychically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof. It appears that Sharon’s promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children.

6. At best, the circumstances relied upon by petitioner are grounds for legal separation under Article 55 of the Family Code. However, we pointed out in Marcos v. Marcos that Article 36 is not to be equated with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. In short, the evidence presented by David refers only to grounds for legal separation, not for declaring a marriage void.

7. We likewise agree with the Court of Appeals that the trial court has no jurisdiction to dissolve the church marriage of David and Sharon. The authority to do so is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church.

8. All told, we find no cogent reason to disturb the ruling of the appellate court. We cannot deny the grief, frustration and even desperation of David in his present situation. Regrettably, there are circumstances, like in this case, where neither law nor society can provide the specific answers to every individual problem. While we sympathize with David’s marital predicament, our first and foremost duty is to apply the law no matter how harsh it may be.