When someone hits a minor, should the charge be child abuse under RA 7610 or physical injury under the Revised Penal Code?

Plain Language summary: Case title: Bongalon v. People of the Philippines (G.R. No. 169533, March 20, 2013) Ruling: Not every instance of laying of hands on a child constitutes the crime of child abuse under Republic Act No. 7610. If the accused intended to debase, degrade or demean the intrinsic worth and dignity of the child as a human being, then the accused can be charged for child abuse. But if that wasn’t the intention, then the accused should be charged under the Revised Penal Code. Relevant laws and discussions: Republic Act No. 7610 Duration of penalties

Background facts

[1] On June 26, 2000, the Prosecutor’s Office of Legazpi City charged George Bongalon in the Regional Trial Court with child abuse under Section 10 (a) of Republic Act No. 7610. Bongalon allegedly

(a) struck Jayson de la Cruz, a minor, with his palm hitting Jayson at his back and

(b) slapped Jayson hitting his left cheek.

Jayson’s physical injury required five to seven days of medical attention.

Bongalon also allegedly uttered these derogatory remarks against Jayson’s family: “Mga hayop kamo, para dayo kamo digdi, Iharap mo dito ama mo” (You all animals, you are all strangers here. Bring your father here).

[2] According to Bongalon’s version of the incident, Jayson and his older brother Roldan threw stones at his two minor daughters Mary Ann Rose and Cherrlyn. Jayson also burned Cherrlyn’s hair. Bongalon denied physically abusing or maltreating Jayson.

[3] The RTC found Bongalon guilty as charged and sentenced him to imprisonment of 6 years and 1 day to 8 years of prision mayor in its minimum period.

[4] Bongalon then appealed to the Court of Appeals. He contended that the RTC overlooked or disregarded material facts and circumstances in the records that would have led to a favorable judgment for him. He attacked the lack of credibility of the witnesses presented against him, citing the failure of the complaining brothers to react to the incident, which was unnatural and contrary to human experience.

The CA affirmed the conviction but modified the penalty to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional, as minimum term, to 6 years, 8 months and 1 day of prision mayor as the maximum.

[5] Bongalon brought his case up to the Supreme Court through a petition for certiorari under Rule 65 of the Rules of Court. He claimed that he was not guilty and that, even assuming that he was guilty, his liability should be mitigated because he had merely acted to protect his two minor daughters.

Supreme Court ruling

[1] As the RTC correctly found, Bongalon struck Jayson at the back with his hand and slapped Jayson on the face. But Bongalon’s acts did not constitute child abuse under RA 7610. He did not intend to debase the “intrinsic worth and dignity” of Jayson as a human being. He also did not intend to humiliate or embarrass Jayson.

Instead of child abuse, Bongalon should be convicted of slight physical injuries under Article 266 (1) of the Revised Penal Code.

[2] Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No. 7610, as follows:

Section 3. Definition of terms. –
x x x x

(b) “Child Abuse” refers to the maltreatment, whether habitual or not, of the child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

[3] The records did not establish beyond reasonable doubt that Bongalon intended to debase the “intrinsic worth and dignity” of Jayson as a human being or that he had intended to humiliate or embarrass Jayson. Bongalon acted on the spur of the moment and in anger, being then overwhelmed by his fatherly concern for the personal safety of his minor daughters who had just suffered harm at the hands of Jayson and his older brother Roldan.

[4] The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of imprisonment. Since Bongalon lost his reason and self-control in defending his daughters, he was entitled to the mitigating circumstance of passion. The proper penalty is 10 days imprisonment.

Other highlights of the Supreme Court ruling

[1] Under the well-recognized doctrine of “pro reo,” every doubt is resolved in favor of the accused. Courts should consider all possible circumstances in favor of the accused.

[2] Bongalon used the wrong remedy in questioning the CA’s affirmance of his conviction. His proper remedy was an appeal taken in due course. He should have filed a petition for review on certiorari. Instead, he wrongly brought a petition for certiorari.

Even if Bongalon’s petition is treated as having been brought under Rule 45 of the Rules of Court, it would still be defective due to its being filed beyond the period provided by law. Section 2 of Rule 45 requires the filing of the petition within 15 days from the notice of judgment to be appealed. Bongalo received a copy of the CA’s decision on July 15, 2005, but filed the petition only on September 12, 2005.

Despite Bongalon’s procedural mistakes, the Supreme Court did not dismiss his petition outright but treated it as an appeal filed on time. The Court said that it did not want to be seen as “an unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of procedure.” The Court explained:

“The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing the petition, and instead set ourselves upon the task of resolving the issues posed by the petition on their merits. We cannot fairly and justly ignore his plea about the sentence imposed on him not being commensurate to the wrong he committed. His plea is worthy of another long and hard look. If, on the other hand, we were to outrightly dismiss his plea because of the procedural lapses he has committed, the Court may be seen as an unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of procedure. But the Rules of Court has not been intended to be rigidly enforced at all times. Rather, it has been instituted first and foremost to ensure justice to every litigant. Indeed, its announced objective has been to secure a ‘just, speedy and inexpensive disposition of every action and proceeding.’ This objective will be beyond realization here unless the Rules of Court be given liberal construction and application as the noble ends of justice demand. Thereby, we give primacy to substance over form, which, to a temple of justice and equity like the Court, now becomes the ideal ingredient in the dispensation of justice in the case now awaiting our consideration.

“The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such birthright without due process of law unless we shunt aside the rigidity of the rules of procedure and review his case.”

After getting married, a woman should consistently use either her maiden surname or her married surname

Plain Language summary Case title: “Maria Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs,” G.R. No. 169202, March 5, 2010 Ruling: A married woman is not prohibited from continuously using her maiden name once she is married. When a woman marries, she does not change her name but only her civil status. RA 8239 does not prohibit a married woman from using her maiden name in her passport. The DFA allows a married woman who applies for a passport for the first time to use her maiden name. She is not required to adopt her husband's surname. But once a married woman uses her married name in her passport, she cannot be allowed to change her family name at will. This prohibition prevents confusion and inconsistency in the records of passport holders. Relevant laws: 1. Republic Act No. 8239 or the Philippine Passport Act of 1996 2. Article 370 of the New Civil Code of the Philippines (law on surnames for married women)

(Related discussion: “Miss, Ms, or Mrs? Philippine law on surnames for married women”)

Background facts:

1. Maria Virginia V. Remo is a Filipino citizen married to Francisco R. Rallonza. The following entries appear in her passport: “Rallonza” as her surname, “Maria Virginia” as her given name, and “Remo” as her middle name.

Virginia’s passport was due to expire on October 27, 2000. She applied for her passport’s renewal with the Department of Foreign Affairs (DFA) office in Chicago, Illinois, USA. She also requested that her maiden name and surname be used in the replacement passport.

2. The DFA office in Chicago and later on DFA Sec. Domingo Siason denied Virginia’s request.

DFA Sec. Siason, through an undersecretary, stated:

This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husband’s name. Use of maiden name is allowed in passport application only if the married name has not been used in previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce and death of the husband. Ms. Remo’s case does not meet any of these conditions.

3. Virginia appealed to the Office of the President but her appeal was denied. The OP stated:

Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 “offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport purposes.”

4. Virginia then filed a petition for review of the OP’s decision with Court of Appeals. The CA denied the petition, stating:

• Virginia’s marriage to Francisco Rallonza has not been annulled or declared void. A divorce decree has also not been granted to them.
• Virgina cannot therefore simply revert to her maiden name in the replacement passport after she had adopted her husband’s surname in her old passport.

Virginia subsequently filed a petition for review of the CA’s ruling with the Supreme Court. She claimed that no law prohibits her from using her maiden name and that Section 5(d) of RA 8239 conflicts with Article 370 of the New Civil Code of the Philippines (NCC).

Issue

Should Virginia be allowed to use her maiden surname in the replacement passport?

Supreme Court ruling

1. “A married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 NCC. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage.”

“A married woman is not prohibited from continuously using her maiden name once she is married. When a woman marries, she does not change her name but only her civil status.”

2. The law governing passport issuance is RA 8239. Section 5(d) “limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport.” These instances are death of husband, divorce decree, annulment or nullity of marriage.

Article 370 of the Civil Code and Section 5(d) of RA 8239 do not conflict with one another. RA 8239, including its implementing rules and regulations, does not prohibit a married woman from using her maiden name in her passport. In fact, in recognition of this right, the DFA allows a married woman who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her husband's surname.

3. Virginia “would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport.”

4. If Virginia’s request to use her maiden surname in the replacement passport is granted, “nothing prevents her in the future from requesting to revert to the use of her husband’s surname.”

“Unjustified changes in one’s name and identity in a passport cannot be allowed. Undue confusion and inconsistency in the records of passport holders will arise.”

For passport issuance purposes, a married woman whose marriage is subsisting, may not change her family name at will.

Can an employee file a case of constructive dismissal and yet continue reporting for work?

Plain Language summary: Case title: ‘The Orchard Golf and Country Club vs. Amelia R Francisco,” G.R. No. 178125, March 2013 Issue: How can an employee file a labor case for constructive dismissal and at the same time continue reporting for work? Ruling: Constructive dismissal does not occur when the employee stops reporting for work, but when the employer commits acts that make continued employment intolerable. In difficult times, an employee may have no choice but to continue working despite the employer’s abuses and even while a labor case is pending between them. This should not be taken against the employee. Definition: “Constructive dismissal” is quitting or cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay and other benefits; if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment; when the employee involuntary resigns due to the harsh, hostile, and unfavorable conditions set by the employer. The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his employment/position under the circumstances. (Gan vs. Galderma Philippines, G.R. No. 177167, January 17, 2013)

Background facts

[1] The Orchard Golf and Country Club (Orchard), operates two golf courses in Dasmariñas, Cavite for its members and their guests. Orchard also has a swimming pool, bowling alley, cinema, fitness center, courts for tennis, badminton and basketball, restaurants, and function rooms.

Amelia R. Francisco (Francisco) was employed as Club Accountant to head Orchard’s General Accounting Division and the four divisions under it. Each of these four divisions has its own Supervisor and Assistant Supervisor. As General Accounting Division head, Francisco reported directly to Orchard’s Financial Comptroller, Jose Ernilo P. Famy (Famy).

Tomas B. Clemente III (Clemente) is Orchard’s General Manager while Ma. Irma Corazon A. Nuevo (Nuevo) is the General and Administrative Manager.

[2] Famy’s actions against Francisco:

(a) suspended Francisco without pay for a period of 15 days for her alleged failure to prepare a letter to SGV, Orchard’s internal auditor, despite repeated verbal and written reminders;

(b) temporarily transferred Francisco to the Cost Accounting Section, without diminution in salary and benefits, while Francisco’s charges against him for fraudulent and negligent acts were being investigated;

(c) asked for investigation into Francisco’s insubordination, for her alleged unauthorized change of day-off from July 30 to August 4, 2000, and for being absent on that date despite disapproval of her leave/offset application;

(d) asked Francisco in a memorandum dated August 5, 2000 to explain the charges of insubordination, negligence, inefficiency and violation of work standards relative to the unauthorized change of day-off and disapproved offset/ leave.

[3] Francisco’s reactions:

(a) She accused Famy of waging a personal vendetta against her because she sought Orchard’s inquiry into Famy’s fraudulent and negligent acts. She also said that her transfer to the Cost Accounting Section was humiliating and demeaning, and that it constituted constructive dismissal.

Francisco also threatened to take legal action or seek assistance from Orchard members to insure that Famy’s impropriety was investigated.

(c) On August 11, 2000, Francisco filed a Complaint for illegal dismissal against Orchard, impleading Famy, Clemente and Nuevo as additional respondents. The case was docketed as NLRC Case No. RAB-IV-812780-00-C. She asked, among others, for damages and attorney’s fees.

[4] Events after Francisco filed her illegal dismissal case with the NLRC:

(a) On August 16, 2000, Francisco received another memorandum requiring her to explain why she should not be charged with betrayal of company trust. The memorandum alleged that a club member was seen distributing copies of Francisco’s letter to Orchard’s Chairman of the Board of Directors.

(b) On August 18, 2000, Francisco submitted her written explanation to the charges.

(c) On August 19, 2000, Clemente handed Francisco a Notice of Disciplinary Action dated August 16, 2000 relative to her July 30, 2000 unauthorized change of day-off and her August 4, 2000 unauthorized leave/absence. Francisco was suspended for another fifteen days, or from August 21 to September 6, 2000.

[5] Events after Francisco’s suspension:

(a) Francisco amended her illegal dismissal Complaint to one for illegal suspension. Meanwhile, she continued to report for work.

(b) On September 7, 2000, or a day after serving her suspension, Francisco received a September 6, 2000 memorandum from Nuevo and approved by Clemente. She was placed on forced leave with pay for 30 days, or from September 7, 2000 up to October 11, 2000, allegedly because the case filed against her has strained her relationship with her superiors.

(c) Francisco wrote a letter to Nuevo seeking clarification as to what case was filed against her. Nuevo immediately sent a reply memorandum stating that the case referred to her alleged “betrayal of company trust.”

(d) After the expiration of her forced leave, or on October 12, 2000, Francisco reported back to work.

This time Francisco was handed an October 11, 2000 memorandum from Clemente informing her that she has been permanently transferred, without diminution of benefits, to Orchard’s Cost Accounting Section effective October 12, 2000. The transfer was due to strained relations between her and Famy and the pending evaluation of her betrayal of company trust charge. Francisco’s position at the Cost Accounting Section was to remain under Famy’s direct supervision.

(e) In an October 13, 2000 memorandum to Clemente, Francisco protested her permanent transfer, claiming that it was made in bad faith. She also bewailed Clemente’s inaction on her July 5, 2000 letter charging Famy with irregularities relative to BIR tax payments.

Because of her transfer, Francisco once more amended her Complaint to include illegal/constructive dismissal. In her prayer, she sought to be reinstated to her former position as Club Accountant.

[6] Labor Arbiter rules against Francisco

Labor Arbiter Enrico Angelo C. Portillo issued a Decision dated August 23, 2001 dismissing Francisco’s Complaint for lack of merit. The Arbiter noted the “belligerence and animosity” between Francisco and Famy. He dismissed Francisco’s charges as nothing more than attempts to get back at Famy for his reproach at her failure to draft the SGV letter.

The Arbiter further upheld Francisco’s two suspensions as valid exercises of Orchard’s management prerogative. He also found Francisco’s claim of constructive dismissal to be baseless. On the contrary, he found Francisco’s transfer as necessary and in furtherance of Orchard’s interests. He also noted that the transfer was lateral, or to a position of the same rank and pay scale based on Orchard’s Organizational Chart.

[7] NLRC overrules the Labor Arbiter

While Francisco’s suspensions were valid, her subsequent permanent transfer on the ground of strained relations to the Cost Accounting Section on October 12, 2000 had no just cause. It resulted in Francisco’s demotion, since the position of Cost Controller was merely of a supervisory character while the position of Club Accountant was of managerial rank. Francisco held the rank of “Manager 3” as Club Accountant, while the Cost Controller is only a Supervisor position and is precisely under the direct supervision and control of the Club Accountant. This unwarranted demotion is equivalent to constructive dismissal.

The NLRC added that “strained relationship” is not a valid ground for termination of employment under the Labor Code. It ordered Francisco’s reinstatement to her former position as Club Accountant and awarded her attorney’s fees in the amount of P50,000.00. But the NLRC absolved Famy, Nuevo and Clemente of wrongdoing.

Francisco moved for partial reconsideration of the NLRC’s Resolution with respect to its ruling declaring her suspensions as valid and the denial of her claim for damages. The NLRC denied her motion.

[8] The Court of Appeals affirms NLRC ruling

Orchard went up to the CA through a Petition for Certiorari while Francisco no longer took issue with the denial of her motion.

In its January 25, 2007 Decision, the CA sustained the NLRC ruling. It held that while Orchard had the right to transfer Francisco from one office to another within the club, there should be no demotion in rank, salary, benefits, and other privileges. The CA added that the right may not be used arbitrarily to rid the employer of an undesirable worker. Proper notification and an opportunity to be heard or contest the transfer must be given to the employee whose transfer is sought.

Francisco was notified only of Orchard’s decision to permanently transfer her, without giving her the opportunity to contest the transfer. The CA characterized Francisco’s permanent transfer as a demotion in the guise of a lateral transfer.

Orchard filed a Petition for Review with the Supreme Court questioning the CA’s decision.

Supreme Court ruling: Francisco was constructively dismissed

Francisco’s transfer to the position of Cost Controller was without valid basis and that it amounted to a demotion in rank. Hence, there was constructive dismissal.

The cause of Francisco’s temporary transfer on July 20, 2000 was her pending complaint against Famy.

When Francisco was placed on forced leave and transferred to the Cost Accounting Section, not once was Francisco given the opportunity to contest these company actions taken against her.

Just when one penalty has been served by Francisco, another would instantaneously take its place. And all these happened even while the supposed case against her, the alleged charge of “betrayal of company trust”, was still pending and remained unresolved.

Not even the claim that her relations with her superiors have been strained could justify Francisco’s transfer to Cost Accounting Section. Indeed, it appears that her charge was never resolved. And if Famy, Nuevo and Clemente truly believed that their relations with Francisco have been strained, then it puzzles the Court why, despite her transfer, she continues to remain under Famy’s direct supervision.

For this reason, Francisco’s July 20, 2000 temporary transfer and her October 12, 2000 permanent transfer to Cost Accounting Section must be invalidated. For one, there was no valid reason to temporarily transfer Francisco to Cost Accounting Section on July 20, 2000. She had already served her penalty for her failure to draft the SGV letter, through the 15-day suspension period which she just completed on July 20, 2000. Secondly, the transfer was not even rooted in any new infraction she is accused of committing. There was thus an absolute lack of basis for her July 20, 2000 temporary transfer.

As for her October 12, 2000 permanent transfer, the same is null and void for lack of just cause. Also, the transfer is a penalty imposed on a charge that has not yet been resolved. Definitely, to punish one for an offense that has not been proved is truly unfair; this is deprivation without due process. Finally, the Court sees no necessity for Francisco’s transfer; on the contrary, such transfer is outweighed by the need to secure her office and documents from Famy’s possible intervention on account of the complaint she filed against him.

The fact that Francisco continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver. Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee’s continued employment shall become so intolerable. In these difficult times, an employee may be left with no choice but to continue with his employment despite abuses committed against him by the employer, and even during the pendency of a labor dispute between them. This should not be taken against the employee. Instead, we must share the burden of his plight, ever aware of the precept that necessitous men are not free men.

Can a rank-and-file employee like a hotel service attendant be terminated on the ground of loss of trust and confidence?

Plain Language summary: Case title: “Philippine Plaza Holdings, Inc. vs. Ma. Flora M. Episcope,” G.R. No. 192826, Feb. 27, 2013 Issues: (1) Can a rank-and-file employee like a service attendant be terminated on the ground of loss of trust and confidence? (2) What are the two classes of positions of trust? (3) What are the requirements for the ground of loss of trust and confidence? (4) Is proof beyond reasonable doubt necessary in dismissing an employee on the ground of loss of trust and confidence? Relevant laws and cases: Article 293 (formerly Article 279) of the Labor Code Bristol Myers Squibb (Phils), Inc. v. Baban, citing Atlas Fertilizer Corporation v. National Labor Relations Commission Lopez v. Alturas Group of Companies

Background facts

[1] Philippine Plaza Holdings, Inc. (PPHI) is the owner and operator of the Westin Philippine Plaza Hotel (Hotel).

Ma. Flora M. Episcope (Episcope) was employed by PPHI from July 24, 1984 until she was terminated on November 4, 2004. Grounds for her termination were dishonesty, willful disobedience, and serious misconduct amounting to loss of trust and confidence.

[2] To check the performance of the employees and the services of the Hotel’s outlets, PPHI regularly employed independent auditors or professional shoppers.

For this purpose, Sycip, Gorres and Velayo auditors dined at the Hotel’s Café Plaza on August 28, 2004. After dining, the auditors were billed the total amount of P2,306.65, representing the cost of the food and drinks they had ordered under Check No. 565938.

[3] Based on the audit report submitted to PPHI, Episcope was one of those who attended to the auditors. She was the one who handed the check and received the payment of P2,400.00. She then returned Check No. 565938, which was stamp marked “paid,” together with the change.

[4] Upon comparing the check receipt with the sales report of Café Plaza, it was discovered that the Hotel’s copy of the receipt had a discount of P906.45. This was due to the use of a Starwood Privilege Discount Card registered in the name of Peter A. Pamintuan. The receipt issued by Episcope to the auditors reflected the undiscounted amount of P2,306.65 since none of the auditors had this discount card.

[5] On September 30, 2004, the Hotel issued a Show-Cause Memo to Episcope asking her to explain why no disciplinary action should be taken against her for the questionable and invalid discount application on the check.

In her handwritten letter, Episcope admitted that she was on duty on the date and time in question. But she could no longer recall if the concerned guests presented a Starwood Privilege Discount Card.

[6] On October 4, 2004, PPHI placed Episcope on preventive suspension without pay.

[7] During the administrative hearing on October 6, 2004, Episcope confirmed that she was the one who presented the check and received the payment from the guests. But she denied stamping the check as “paid” or that she gave any discount without a discount card. She explained that she could not have committed these acts since all receipts and discount applications were handled by the cashier. But when asked why the discounted receipt was not given to the guests, she merely replied that she could no longer remember.

In a separate inquiry, the cashier of Café Plaza maintained that a discount card must have been presented since there was a Discount Slip and a stamped receipt indicating the discounted payment.

[8] Finding Episcope to have failed to sufficiently explain the questionable discount application, PPHI terminated her employment for committing acts of dishonesty, willful disobedience, serious misconduct, and loss of trust and confidence.

[9] Episcope filed a complaint for illegal dismissal with prayer for payment of damages and attorney's fees against PPHI before the NLRC.

Rulings of the Labor Arbiter and the NLRC

On October 20, 2005, the Labor Arbiter (LA) dismissed Episcope’s complaint for illegal dismissal.

The LA found that there was substantial evidence to support the charge of improper discount application and observed that the act resulted to a loss on the Hotel’s part. Accordingly, the LA held that Episcope’s actions rendered her unworthy of the trust and confidence demanded by her position.

On appeal, the NLRC affirmed the LA’s decision in its May 30, 2007 Resolution. It also denied Episcope’s motion for reconsideration in its November 14, 2007 Resolution.

Ruling of the Court of Appeals

The CA reversed the NLRC’s Decision. It found the report submitted by the auditors insufficient to prove that Episcope was guilty of the charges against her.

The CA described the report as a mere transaction account in tabular form, without evidentiary worth. It was unsigned and bore no indication of Episcope’s alleged culpability. The CA likewise did not give credence to the minutes of the administrative hearing because it was based on the same unaudited report.

The CA (1) declared Episcope’s dismissal illegal; (2) ordered her reinstatement to her former position without loss of seniority rights and benefits under the Labor Code; and (3) remanded the case to the NLRC for further proceedings on her money claims and other benefits.

PPHI moved for reconsideration but he CA in its July 5, 2010 Resolution denied the motion. PPHI then filed with the Supreme Court a petition for certiorari under Rule 45.

The Supreme Court ruling

[1] The Court reversed the findings and conclusion of the CA. The records show that Episcope committed acts of dishonesty that resulted to monetary loss on the part of PPHI. More significantly, her acts led to PPHI’s loss of trust and confidence in her.

Despite the questioned value of the unaudited and unsigned auditor’s report, all circumstances support the finding that Episcope was negligent in her duty to carefully account for the money she received from the café’s guests. Even though the receipts were prepared by the cashier, Episcope, as a service attendant, actually handled the money given to her by the guests. She should have at least known why there was a shortage in remittance. Yet when asked, she could not offer any plausible explanation but merely shifted the blame to the cashier.

[2] Article 293 (formerly Article 279) of the Labor Code25 provides that the employer must not terminate the services of an employee except only for a just or authorized cause.

Among the just causes for termination is the employer’s loss of trust and confidence in its employee. Article 296 (c) (formerly Article 282 [c]) of the Labor Code provides that an employer may terminate the services of an employee for fraud or willful breach of the trust reposed in him.  

But in order for loss of trust and confidence to be properly invoked, certain requirements must be complied with, namely:

1. the employee must be holding a position of trust and confidence, and
   
   
2. there must be an act that would justify the loss of trust and confidence.

[3] The two classes of positions of trust are:

(1) managerial employees whose primary duty consists of the management of the establishment in which they are employed or of a department or a subdivision, and other officers or members of the managerial staff;

(2) fiduciary rank-and-file employees, such as cashiers, auditors, property custodians, or those who, in the normal exercise of their functions, regularly handle significant amounts of money or property. These employees, though rank-and-file, are routinely charged with the care and custody of the employer’s money or property, and are thus classified as occupying positions of trust and confidence.

Episcope belonged to this latter class and therefore, occupied a position of trust and confidence.

[4] Proof beyond reasonable doubt is not required in dismissing an employee for loss of trust and confidence. It is sufficient that there is some basis to believe that the employee is responsible for the misconduct. The nature of the employee’s act rendered the employee absolutely unworthy of trust and confidence demanded by the position.

Loss of trust and confidence must be based on substantial evidence and not on the employer’s whims, caprices or suspicions. Otherwise, the employee would eternally remain at the mercy of the employer. Loss of confidence must not be indiscriminately used as a shield by the employer against a claim that an employee’s dismissal was arbitrary.

BP 22 demand letter (notice of dishonor) must be actually received by issuer of check

Plain Language summary: Case title: “Erlinda C. San Mateo, Petitioner v. People of the Philippines, Respondent,” G.R. NO. 200090, March 6, 2013 Ruling: Notice of dishonor must be actually received by issuer of the check. When an acquittal is based on lack of proof beyond reasonable doubt, civil damages can be awarded.

Background facts

The Metropolitan Trial Court (MeTC) of Taguig City, Branch 74 found San Mateo guilty of 10 counts of violation of B.P. 22. She was sentenced to suffer the straight penalty of imprisonment of six months for each count. As to San Mateo’s civil liability, the MeTC ordered her to pay Php 134,275.00, the total value of the 11 checks she issued to ITSP International, Incorporated.

Both the Regional Trial Court and the Court of Appeals affirmed the MeTC’s decision.

Supreme Court ruling

The Supreme Court acquitted San Mateo on the ground that her guilt has not been established beyond reasonable doubt.

But her civil liability for the dishonored checks stands. She must pay Php 134,275.00 plus 12% interest per annum from the time the sum became due and demandable until fully paid.

Reasons for the Court’s ruling

[1] To be liable for violation of B.P. 22, the following essential elements must be present:

(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

The Court found that the second element was not sufficiently established. Section 2 of B.P. 22 creates the presumption that the issuer of the check was aware of the insufficiency of funds when the check was issued and the bank dishonored it. But this presumption, however, arises only after it is proved that:

(1) the issuer had received a written notice of dishonor and

(2) within five days from receipt of the notice, the issuer failed to pay the amount of the check or to make arrangements for its payment.

[2] San Mateo may have requested in her letters that Sehwani (ITSP Vice-President for Operations) defer depositing all the checks, otherwise, her account will close. But San Mateo’s act was not an admission that, when she issued those checks, she knew that she would have no sufficient funds in the drawee bank.

Sehwani tried to serve the notice of dishonor to San Mateo two times. First, Sehwani’s counsel sent a demand letter to San Mateo’s residence at Greenhills, San Juan. When the security guard refused to accept the letter, the liaison officer told the guard to hand it to San Mateo. But the prosecution failed to show that the letter ever reached San Mateo.

Second, Sehwani’s counsel sent a demand letter to San Mateo by registered mail. It was returned with the notation “N/S Party Out 12/12/05” and that San Mateo did not claim it despite three notices to her.

[3] The notice of dishonor must be actually received by the issuer of the check. The Court has consistently ruled that receipts for registered letters, including return receipts, do not themselves prove receipt. They must be properly authenticated to serve as proof of receipt of the letters, claimed to be a notice of dishonor.

The presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that the accused received the notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the accused. The prosecution must also prove actual receipt of the notice, because the fact of service provided for in the law is reckoned from receipt of the notice of dishonor by the accused.

Since there is insufficient proof that San Mateo actually received the notice of dishonor, the presumption that she knew of the insufficiency of her funds cannot arise. For this reason, the Court cannot convict her with moral certainty of violation of B.P. 22.

[4] But San Mateo’s acquittal does not extinguish her civil liability for the dishonored checks. When an acquittal is based on lack of proof beyond reasonable doubt, civil damages can be awarded. For this reason, the trial court’s directive for San Mateo to pay the civil liability in the amount of Php 134,275.00 representing the total value of the 11 checks plus 12% interest per annum from the time the said sum became due and demandable until fully paid, stands.

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.