Professional Documents
Culture Documents
Kasambahay
Posted on March 9, 2013 by Atty. Fred 2 Comments
In a move meant to better protect domestic workers, the Philippine Congress
passed a law known as the Domestic Workers Act or Batas Kasambahay.
On 18 January 2013, President Benigno Aquino III signed Republic Act No.
10361 (full text), instituting policies for the protection and welfare of
domestic helpers. Considering that it equally affects the domestic helpers
and the employers, lets get to know whats provided in this law.
1. Who is a Kasambahay or Domestic Worker?
2. Minimum age of domestic workers
3. Employers reportorial duties
4. Requirement of a contract
5. Wage provisions
6. Rest periods and leave credits
7. SSS and other social benefits
8. Assignment to non-household work
9. Assignment in another home
10. Deposits for loss or damage
11. Prohibition on debt bondage
12. Rights and Privileges of Kasambahay
13. Cessation of employment
1. Who is a Kasambahay or Domestic Worker?
Domestic worker or Kasambahay refers to any person engaged in domestic
work within an employment relationship such as, but not limited to, the
following: general househelp, nursemaid or yaya, cook, gardener, or
laundry person, but shall exclude any person who performs domestic work
only occasionally or sporadically and not on an occupational basis.
The term shall not include children who are under foster family arrangement,
and are provided access to education and given an allowance incidental to
education, i.e. baon, transportation, school projects and school activities.
2. Minimum age of domestic workers
Its criminally punishable to employ any person below 15 years of age as a
domestic worker.
3. Employers reportorial duties
The employers shall register all domestic workers under their employment in
the Registry of Domestic Workers in the barangay where the employers
residence is located. [Back to the top]
4. Requirement of a contract
An employment contract shall be executed by and between the domestic
worker and the employer before the commencement of the service in a
language or dialect understood by both the domestic worker and the
employer. The domestic worker shall be provided a copy of the duly signed
employment contract which must include the following:
(a) Duties and responsibilities of the domestic worker
(b) Period of employment
(c) Compensation
(d) Authorized deductions
(e) Hours of work and proportionate additional payment
(f) Rest days and allowable leaves
(g) Board, lodging and medical attention
(h) Agreements on deployment expenses, if any
(i) Loan agreement
(j) Termination of employment
(k) Any other lawful condition agreed upon by both parties
The Department of Labor and Employment (DOLE) shall develop and
disseminate a model employment contract for domestic workers. In cases
where the employment of the domestic worker is facilitated through a private
employment agency, the PEA shall keep a copy of all employment contracts
of domestic workers and shall be made available for verification and
inspection by the DOLE. [Back to the top]
5. Wage provisions
What is the minimum wage of domestic helpers?
The minimum wage of domestic workers shall not be less than the following:
a. P2,500 a month for those employed in the National Capital Region (NCR)
b. P2,000 a month for those employed in chartered cities and first class
municipalities
not exceeding 15 days shall be forfeited. Likewise, the employer shall not
induce the domestic worker to give up any part of the wages by force,
stealth, intimidation, threat or by any other means whatsoever. [Back to the
top]
6. Rest periods and leave credits
How many hours of rest period per day?
Domestic workers are entitled to an aggregate daily rest period of 8 hours
per day.
IBIG, and shall be entitled to all the benefits in accordance with the pertinent
provisions provided by law.
Premium payments or contributions shall be shouldered by the employer.
However, if the domestic worker is receiving a wage of P5,000 and above per
month, the domestic worker shall pay the proportionate share in the
premium payments or contributions, as provided by law.
The domestic worker shall be entitled to all other benefits under existing
laws. [Back to the top]
8. Assignment to non-household work
No domestic worker shall be assigned to work in a commercial, industrial or
agricultural enterprise at a wage rate lower than that provided for
agricultural or non-agricultural workers. In such cases, the domestic worker
shall be paid the applicable minimum wage. [Back to the top]
access to communication shall be granted even during work time. Should the
domestic worker make use of the employers telephone or other
communication facilities, the costs shall be borne by the domestic worker,
unless such charges are waived by the employer.
Right to Education and Training
The employer shall afford the domestic worker the opportunity to finish basic
education and may allow access to alternative learning systems and, as far
as practicable, higher education or technical and vocational training. The
employer shall adjust the work schedule of the domestic worker to allow
such access to education or training without hampering the services required
by the employer.
Prohibition Against Privileged Information
All communication and information pertaining to the employer or members
of the household shall be treated as privileged and confidential, and shall not
be publicly disclosed by the domestic worker during and after employment.
Such privileged information shall be inadmissible in evidence except when
the suit involves the employer or any member of the household in a crime
against persons, property, personal liberty and security, and chastity. [Back
to the top]
13. Cessation of employment
Termination of service
Neither the domestic worker nor the employer may terminate the contract
before the expiration of the term except on reasons allowed by law. If the
domestic worker is unjustly dismissed, the domestic worker shall be paid the
compensation already earned plus the equivalent of 15 days work by way of
indemnity. If the domestic worker leaves without justifiable reason, any
unpaid salary due not exceeding the equivalent 15 days work shall be
forfeited. In addition, the employer may recover from the domestic worker
costs incurred related to the deployment expenses, if any, provided that the
service has been terminated within 6 months from the domestic workers
employment.
If the duration of the domestic service is not determined either in stipulation
or by the nature of the service, the employer or the domestic worker may
give notice to end the working relationship 5 days before the intended
termination of the service.
The domestic worker and the employer may mutually agree upon written
notice to pre-terminate the contract of employment to end the employment
relationship.
Termination initiated by the domestic worker
The domestic worker may terminate the employment relationship at any
time before the expiration of the contract for any of the following causes:
(a) Verbal or emotional abuse of the domestic worker by the employer or any
member of the household;
(b) Inhuman treatment including physical abuse of the domestic worker by
the employer or any member of the household;
(c) Commission of a crime or offense against the domestic worker by the
employer or any member of the household;
(d) Violation by the employer of the terms and conditions of the employment
contract and other standards set forth under this law;
(e) Any disease prejudicial to the health of the domestic worker, the
employer, or member/s of the household; and
(f) Other causes analogous to the foregoing.
Termination initiated by the employer
An employer may terminate the services of the domestic worker at any time
before the expiration of the contract, for any of the following causes:
(a) Misconduct or willful disobedience by the domestic worker of the lawful
order of the employer in connection with the formers work;
If I state this in the contract, will I still be violating the law? Wherein we will
make an agreement that the amount initially taken will also be returned after
few months.
2.
infringes on the right of the people to import books, media and music for
their own personal use.
For comparison and in order to better understand the debate, the old text
under R.A. 8293 is reproduced in full, as follows:
Section 190. Importation for Personal Purposes. 190.1.
Notwithstanding the provision of Subsection 177.6, but subject to the
limitation under the Subsection 185.2, the importation of a copy of a work by
an individual for his personal purposes shall be permitted without the
authorization of the author of, or other owner of copyright in, the work under
the following circumstances:
(a) When copies of the work are not available in the Philippines and:
(i) Not more than one (1) copy at one time is imported for strictly individual
use only; or
(ii) The importation is by authority of and for the use of the Philippine
Government; or
(iii) The importation, consisting of not more than three (3) such copies or
likenesses in any one invoice, is not for sale but for the use only of any
religious, charitable, or educational society or institution duly incorporated or
registered, or is for the encouragement of the fine arts, or for any state
school, college, university, or free public library in the Philippines.
(b) When such copies form parts of libraries and personal baggage belonging
to persons or families arriving from foreign countries and are not intended for
sale: Provided, That such copies do not exceed three (3).
190.2. Copies imported as allowed by this Section may not lawfully be used
in any way to violate the rights of owner the copyright or annul or limit the
protection secured by this Act, and such unlawful use shall be deemed an
infringement and shall be punishable as such without prejudice to the
proprietors right of action.
190.3. Subject to the approval of the Secretary of Finance, the
Commissioner of Customs is hereby empowered to make rules and
regulations for preventing the importation of articles the importation of
which is prohibited under this Section and under treaties and conventions to
which the Philippines may be a party and for seizing and condemning and
disposing of the same in case they are discovered after they have been
imported.
The new law, Republic Act No. 10372, totally deleted Sections 190.1 and
190.2. This deletion is interpreted by some quarters as a clear intent to
disallow such acts. In other words, they argue that unlike before, Filipinos
and foreigners alike cannot bring to the Philippines an intellectual property
work, a book or a CD for instance, even if it is for personal use. This would
mean that if the traveler brings a book, perhaps bought from the airport
bookstore abroad to pass away time, it would be illegal for that book to be
brought into Philippine jurisdiction.
Section 190.3 was retained, expanded to cover both importation and
exportation as well, and renumbered simply as Section 190, with the
following text (underscored portions are the amendments):
Section 190. Importation and Exportation of Infringing Materials.
Subject to the approval of the Secretary of Finance, the Commissioner of
Customs is hereby empowered to make rules and regulations for preventing
the importation or exportation of infringing articles prohibited under this
Section Part IV of this Act and under relevant treaties and conventions to
which the Philippines may be a party and for seizing and condemning and
disposing of the same in case they are discovered after they have been
imported or before they are exported. [Note: the underscored portions are
the amendments]
Some speakers believe that the the deletion is inconsequential because the
right to import copyrighted materials previously granted under the Sections
190.1 and 190.2 is also covered and governed under the existing provisions
on fair use under Section 185.1. However, even if bringing in of IP works for
personal use is indeed covered under the provision on fair use, the
amendment exposes consumers to airport inconvenience brought about by
the possible differences of interpretation on the part of the enforcement
officers.
It would be interesting to see how the deletion of old Sections 190.1 and
190.2 will be interpreted in the Implementing Rules and Regulations. What
do you think?
8. Keep your drivers license and car registration handy and within reach.
9. Be ready to use your cellphone at anytime. Speed dial emergency
number.
10. Report violations immediately. Your actions may save others.
Its also helpful to remind everyone to be respectful when talking with the
police authorities manning checkpoints. Lower the passenger window only a
bit (to allow the driver and the police to hear each other). Note the names
tags and other identifying information.
the PNP could easily trace it. If the slug cannot be found in the database,
then most likely it was fired from an unlicensed gun.
Then why are we blaming licensed owners of guns? Why not go after
unlicensed firearms, estimated at 600,000? If a total gun ban is imposed,
does that mean that ALL the UNLICENSED firearms are also taken off the
streets? Maybe the proponents of total gun ban can ENSURE a police
response time of under 3 minutes? Why punish law-abiding and responsible
owners of guns?
Anti-Corporal Punishment Bill
Posted on October 27, 2012 by Atty. Fred No Comments
I learned only recently that House Bill 4455, or the Positive and Non-Violent
Discipline of Children Act, is currently with the Senate after having
been approved by the House of Representatives. This proposed law, in my
humble opinion, is too much.
It has been referred as anti-corporal punishment bill, which is not exactly
accurate because it defines corporal punishment as referring to cruel and
unusual punishment that subject the child to indignities and other excessive
chastisement that embarrasses or humiliates the child, including, but not
limited to, verbal abuse, or assaults including intimidation or threat of
bodily harm, swearing or cursing, ridiculing or denigrating the child and
making a child look foolish which tends to belittle or humiliate the child in
front of others.
These acts do not exactly fall into the traditional definition of corporal
punishment. The open-ended definition of what is corporal punishment
lends itself to abuse. It is overbroad. Despite the expressed intent of
protecting the child, by itself the subject of numerous laws that sorely need
effective implementation, it appears to be an unwarranted intrusion into the
parenting prerogative. There must be some penumbra of family and parental
privacy that is impinged by this proposed law.
Annulment in the Philippines: Questions and Answers (Part 6)
Posted on April 18, 2012 by Atty. Fred 43 Comments
We have time to address some questions relating to annulment in the
Philippines. Lets consolidate the questions that are newly raised for easy
the adopter; (vii) an adopted child and a legitimate child of the adopter; (viii)
adopted children of the same adopter; and (ix) parties where one, with the
intention to marry the other, killed that other persons spouse, or his or her
own spouse.
9. Psychological Incapacity. Psychological incapacity, which a ground for
annulment of marriage, contemplates downright incapacity or inability to
take cognizance of and to assume the basic marital obligations; not a mere
refusal, neglect or difficulty, much less, ill will, on the part of the errant
spouse. Irreconcilable differences, conflicting personalities, emotional
immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual
infidelity or perversion, and abandonment, by themselves, also do not
warrant a finding of psychological incapacity. We already discussed
the guidelines and illustrations of psychological incapacity, including a case
involving habitual lying, as well as the steps and procedure in filing a
petition.
Please note, however, that there are still other grounds to declare a marriage
as null and void.
Can I file a petition (annulment or declaration of absolute nullity of
marriage) even if I am in a foreign country?
Yes, the rules recognize and allow the filing of the petition by Filipinos who
are overseas.
Update: Browse through the comments below to check if your questions are
similar to that of others. Other common issues are consolidated in Part II or
in Costs in seeking an Annulment.
Also posted at the Philippine e-Legal Forum.
Annulment in the Philippines (Questions and Answers Part 5): Overseas
Filipinos Edition
Posted on July 25, 2011 by Atty. Fred 34 Comments
We have four installments on this topic (refer to Part I, Part II, Part III, Part IV),
as well as related posts on annulment, legal separation, declaration of nullity
and divorce. Were trying to cope with the numerous questions raised, but
with our schedules, its impractical to answer the questions one by one. This
is the reason why we summarize the questions so that similar ones would be
answered in one go. Again, browse through the existing related articles to
see if your questions are covered by existing discussions.
In this series, well centralize the questions relevant to Overseas Filipinos and
OFWs. This will be a continuing discussion:
Divorce is allowed in the country where Im located. Can I get a
divorce here and would this be recognized in the Philippines?
Some countries allow the filing of divorce by Filipinos within their jurisdiction.
The problem, however, is a divorce obtained by a Filipino abroad is not
recognized in the Philippines (but therule is different if the divorce is secured
by the foreign spouse). Its a useless exercise as far as Philippine law is
concerned.
If a divorce secured by my foreign spouse is recognized in the
Philippines, what should I do?
You need to file a petition for recognition of a foreign divorce decree with the
appropriate court in the Philippines. Ask your lawyer to prepare the petition
for you. See Judicial Recognition of Foreign Divorce Decree. Other related
questions on foreign divorce decrees are discussed in that article.
Would it make any difference if I marry abroad (where divorce is
allowed) so I could get a divorce later on in that place?
No. Filipinos are covered by the prohibition against divorce, regardless of
wherever they get married (and regardless where they get a decree of
divorce). This is based on the nationality principle which basically provides
that Philippine laws affecting their status follow them wherever they may be.
Would it make any difference if I later become a citizen of the other
country? For instance, I was married in the Philippines and secured
a divorce in the United States. Both of us are Filipinos and my
spouse voluntarily signed the divorce papers. After the divorce, I
married another guy, a former Filipino who had acquired U.S.
citizenship. I am still a Filipino citizen. Is my previous marriage still
valid in the Phils.?
Yes, the first marriage is still considered valid in the Philippines because
divorce between Filipinos, wherever secured and even if with the consent of
both spouses, is not recognized under Philippine laws. In other words, as far
as the Philippines is concerned, the second marriage is null and void.
What if I were naturalized in another country and I subsequently
secure a divorce?
Naturalization in a foreign country is one of the ways to lose Filipino
citizenship. A Filipino who loses his citizenship through naturalization may
secure a divorce decree abroad and have the valid divorce decree recognized
in the Philippines through the proper process in court.
What if I secured a divorce decree abroad and subsequently lose my
Philippine citizenship, will the divorce decree be recognized in the
Philippines?
Spouses who are both Filipinos at the time of the celebration of the marriage
may validly secure a divorce abroad if one (or both) of them is naturalized as
a foreign citizen and obtains a divorce decree AFTER losing Philippine
citizenship. The reckoning point is not the citizenship of the parties at the
time of marriage, but their citizenship at the time a valid divorce is obtained
abroad by the alien spouse capacitating the latter to remarry.
If divorce is not allowed in the Philippines, does this mean that
spouses have no remedy in getting out of a problematic marriage?
While divorce is against public policy and is prohibited by law, the Family
Code provides for certain grounds to annul a marriage or declare it as null
and void.
Why not allow divorce in the Philippines?
Good question. But this is properly addressed to your representatives in the
House and your Senators. As members of the legislative department, they
have the power to make laws and change existing laws. See Allowing Divorce
in the Philippines.
Can I file the petition for annulment or declaration of nullity even if
Im abroad?
Yes. You could prepare and file the petition for annulment or declaration of
nullity even if youre abroad. You could sign the document abroad and have it
authenticated at the nearest Philippine embassy. You could then transmit the
documents for filing here in the Philippines. Your lawyer should be able to
guide you every step of the way, including the preparation and filing of the
petition.
Divorce in the Philippines and Judicial Recognition of Foreign
Divorce Decree
Posted on July 25, 2011 by Atty. Fred 35 Comments
Divorce is not allowed in the Philippines and divorce secured anywhere by a
Filipino is not recognized in this jurisdiction. If youre a Filipino, it doesnt
matter where you get a divorce: such divorce is invalid/void in the
Philippines. This is because under the nationality principle (Art. 15, Civil
Code), all Filipinos where they may be in the world are bound by
Philippine laws on family rights and duties, status, condition, and legal
capacity. In certain instances, however, adivorce validly secured abroad by a
non-Filipino may be recognized here in the Philippines.
Is there a legal provision that recognizes divorce in the Philippines?
Yes. On 6 July 1987, President Corazon Aquino signed Executive Order No.
209, otherwise known as the Family Code. Article 26 of this law, which took
effect on 3 August 1988, reads:
All marriages solemnized outside the Philippines in accordance with the laws
in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35,
37, and 38.
On 17 July 1987, Executive Order No. 227 was signed into law, amending
Article 26 of the Family Code, among others. Article 26 now reads:
ART. 26. All marriages solemnized outside the Philippines in accordance with
the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.
It may be unfair, but thats the law, consistent with the States policy of not
allowing divorce for Filipinos. This doesnt mean, however, that the
Filipino/Filipina has no other recourse. If the circumstances fall under the
grounds for annulment/declaration of nullity, then the marriage could still be
annulled or declared null and void from the beginning.
If theres already a divorce validly secured abroad (by the foreignerspouse or the Filipino spouse who became a foreign citizen, losing
his/her Filipino citizenship in the process), can the Filipino spouse
immediately remarry?
No. The existence of a valid divorce decree, however, does not automatically
entitle the Filipino to remarry in the Philippines. The foreign divorce decree
must be judicially recognized in the Philippines. This means that the proper
action or petition must be filed in a Philippine court. For purposes of remarriage, the divorce validly secured abroad is not automatically recognized
here in the Philippines.
Isnt it enough that I already forwarded the divorce decree to the
Philippine Embassy (or the Department of Foreign Affairs) and the
National Statistics Office (NSO)?
No. The foreign divorce decree must be recognized here in the Philippines; a
process which may only be done through the courts.
Why should we waste money in filing a petition in court for the
recognition of the divorce decree?
This is the requirement of law, unfortunately. The divorce decree must be
proven, just like any fact, in court. The presentation of the divorce decree is
insufficient. Proof of its authenticity and due execution must be presented.
This necessarily entails proving the applicable laws of the jurisdiction where
the foreigner-spouse (who could be a former Filipino) is a national. One of the
requirements under Article 26 is that the decree of divorce must be valid
according to the national law of the foreigner.
Allowing Absolute Divorce in the Philippines
Posted on April 18, 2008 by Atty. Fred 170 Comments
Divorce is a controversial topic, except that its often discussed with hushed
voices. Many are just waiting for the right opportunity to end their respective
marriages, and the reasons are diverse physical abuse (against the spouse
and/or the children), sexual infidelity, irreconcilable differences and
conflicting personalities, gross irresponsibility, loss (and transfer) of affection,
among others. Unfortunately, these grounds are not enough to severe the
Divorce is not a novel legal right. The Family Code sanctions relative
divorce (a mensa et thoro). Legal separation is a recognized remedy for
victims of failed marriages. Our civil laws on marriage justify and allow the
separation of married individuals but does not confer them the legal right or
remedy to extricate themselves from the ordeal of a broken marriage.
Divorce is not exclusive to contemporary times. Before the Spanish
colonial rule in the early 16th century, absolute divorce had been widely
practiced among our ancestral tribes the Tagbanwas of Palawan, the
Gadang of Nueva Vizcaya, the Sagada and Igorot of the Cordilleras, the
Manobo, Bila-an and Moslems of Visayas and Mindanao islands, to name a
few.
There were prior divorce laws. In 1917, Act 2710 allowed divorce on the
grounds of adultery on the part of the wife and concubinage on the part of
the husband. During the Japanese Occupation, a new law on absolute
divorce, E.O. No. 141, was promulgated providing for ten grounds for
divorce. These laws are no longer in effect.
Based on the increasing number of failed marriages which confines many of
our citizens to a perpetual state of marital limbo, it has become morally and
socially acceptable for many Filipinos to grant spouses of broken marriages
the legal right to remarry. The present grounds for legal separation which
are recognized in our society as justifiable bases for relative divorce should
be re-enacted as lawful grounds for absolute divorce. In addition, it is
recommended that irreconcilable marital differences be included in our
present civil laws as a justifiable cause for absolute divorce because not all
circumstances and situations that vitiate the institution of marriage could be
specifically categorized and defined by our lawmakers. Spouses living in a
state of irreparable marital conflict or discord should be given the
opportunity to present their marital contrarieties before the courts and have
such differences adjudged as substantial grounds to dissolve or sever the
legal bond of marriage.
In addition to these reasons, there are criticisms that the existing laws on
annulment are anti-poor, as the high cost needed to pursue a case for
annulment prevents the poor from securing one. This, however, is the very
reason cited by those who oppose divorce the high cost is intended to
discourage the people from trifling with marriage. Allowing divorce would
serious weaken the institution of marriage. Anyone could decide to get
married without thinking twice because they can get out of the marriage
easily with divorce. If the current increase of annulment cases is alarming,
imagine how the allowance of divorce would greatly increase the figure.
Other arguments against the legalization of divorce are contained in
the Position Paperof the Commission on Human Rights (CHR) against these
bills. The highlights are:
1. The proposal to legalize absolute divorce with the right to remarry violates
relevant international instruments on human rights, particularly Article 16(3)
of the United Nation Declaration of Human Rights.
2.The innocent spouse and the children in most cases may suffer economic
difficulties. Aside from being abandoned by the guilty spouse, the innocent
spouse and children, in most cases, will suffer untold economic difficulties.
The divorced spouses who will remarry will have to maintain another family
of their own.
3. The human rights of the innocent spouse is violated. The guilty spouse in
the divorce case is allowed to abandon or neglect his obligation to provide
company and care of the innocent spouse and the children, thus violating
Article 68 of the Family Code which reads: The husband and wife are
obliged to live together, observe mutual love, respect and fidelity and render
mutual help and support.
4. Irrespective of any religious beliefs, divorce of spouses with right to
remarry constitutes a grave offense against a natural law. Divorce is
unnatural and immoral as it causes disorder in the family and society.
Because of its contagious effect in society, it becomes a plague on society. A
divorce invites another divorce. The innocent spouse who has not
contravened any law is unlawfully deserted.
5. Absolute divorce is destructive of the family as a social institution
mandated under the Constitution. One of the basic policies of the State, as
declared in the principles of the Philippine Constitution reads: The State
recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from conception. The natural
and primary right and duty of parents in the rearing of the young for civic
inefficiency and the development of moral character shall receive the
support of the government.(Article 11, Section 12) The relevant
constitutional provisions will have to be amended before the divorce bills will
be enacted into law.
and the informants name) are substantial changes an not merely clerical
errors.
Update: Thank you to some who took time to answer some of the questions.
Considering that there are unanswered questions and because I dont have
the luxury of time, we shall try to address the issues through the Q&A here.
This will be updated from time to time to address new issues. Please go
through the questions before posting a query (and please remember that this
is a discussion, so feel free to address the issues).
Does this law cover other errors?
Many have errors in the surname, gender (i.e., male or female), birth
date, age, nationality (e.g., Filipino), status (single, married) reflected in the
entries appearing at the civil registrar. These substantial matters are not
covered by this law. Corrections covering these matters require a petition to
be filed in court.
Posted in Family Law, Legal Procedure
194 comments on Change of name without court intervention (R.A.
9048)
Impeachment mooted by resignation of Ombudsman Merceditas Gutierrez
Posted on April 30, 2011 by Atty. Fred 1 Comment
While the Senate is preparing for the impeachment trial which is set to start
on 9 May 2011, Ombudsman Merceditas Gutierrez announced her resignation
yesterday. The resignation effectively renders the impeachment trial moot
and academic.
Impeachment is the only legal mechanism to remove certain government
officials, specifically the the President, the Vice-President, Members of the
Supreme Court, Members of the Constitutional Commissions, and the
Ombudsman. [Click here to read more on impeachment]
A ruling against the subject officer does not result to a criminal conviction or
even a criminal charge (unless theres a separate case). It merely results to
the removal of that officer. Theres no officer to remove if the said officer is
no longer in office by reason of resignation.
The Impeachment: Should Chief Justice Renato Corona Testify in his Defense?
Posted on March 22, 2012 by Atty. Fred 5 Comments
Today, 22 March 2012, the defense presented its last witness (former Manila
Mayor Lito Atienza) before the Senate, acting as an impeachment court,
takes a break. Even before the trial resumes in May, theres a discussion on
whether Chief Justice Corona should take the witness stand.
Many are saying CJ Corona should testify to personally shed light on the
transactions. The expected logic is this: he must testify if he has nothing to
hide. Even the Impeachment Court presiding officer, Senate President Juan
Ponce Enrile, stated that Corona should testify.
[The poll is found below. Feel free to discuss and argue in the
comment section below.]
On the other hand, whether to take the witness stand is within the sole
discretion of the defense panel. Nobody, not the prosecution or the Senate,
can compel the Chief Justice to testify. Some say there would be no need for
CJ Corona to testify if other witnesses and the documents already establish
his defense. Others point out that he will be a sitting duck, dead man
walking, if he appears in the Senate primarily because, as alleged by the
defense, some senators appear to be an extension of the prosecution.
What Constitutional Crisis? The Impeachment of Chief Justice Renato Corona
Posted on December 14, 2011 by Atty. Fred 14 Comments
In yesterdays news, the phrase constitutional crisis had been uttered by at
least two personalities in connection with the impeachment of Supreme
Court Chief Justice Renato Corona. Supreme Court Spokesman and Court
Administrator Jose Midas Marquez said: No doubt, we are staring a
constitutional crisis right in its face, however prudence dictates that I must
confine myself to these few observations.
IBP President Roan Libarios purported said as much, adding that: We are
concerned with the impeachment against Chief Justice and its chilling effect
on the Supreme Court as an institution because the impeachment is based
on the decision made by Congress, which is now claiming authority of
interpreting what the law is.
But what is a constitutional crisis?
A constitutional crisis does not occur when branches of government collide.
The Constitution outlines the powers of the functions and powers of the three
With all due respect, there is no constitutional crisis. None yet. Maybe the
term constitutional crisis makes good media sound bite. Maybe people
would be more interested with a crisis, but the purported constitutional
crisis that we have now is an illustration of how the system of checks and
balances work under the Constitution.
[So, what's your take on the current situation? Use the comment section
below.]
Update (Results, as of 22 March 2012):
Poll question: Do you agree with PNoys attack against Corona?
Yes (18%, 70 Votes)
Yes, kulang pa nga (16%, 61 Votes)
Yes, pero sobra na (7%, 26 Votes)
No (14%, 54 Votes)
No, abuso na (45%, 181 Votes)
after losing his job in a top network, resorts to using his plastic money. By the
time he finds employment in the rival network, he has wracked up P58,000 in
credit card bills. But he figures hes not yet ready to pay in full, so he pays
just the minimum amount due. Yet after five years, he is shocked to realize
that his credit card debt had ballooned more than 10 times to P700,000.
Perhaps youve heard, or, most probably, experienced certain innovative
strategies used by credit card companies and their collection agencies in
persuading you to pay (they are, of course, entitled to payment). With the
rising complaints against these strategies, the Bangko Sentral ng Pilipinas
(BSP) issued a set of rules and regulations governing the credit card
operations of banks and affiliate credit card companies. Without limiting the
general application of the foregoing, the following are considered unfair
collection practices
a) the use or threat of violence or other criminal means to harm the physical
person, reputation, or property of any person.
b) the use of obscenities, insults, or profane language which amount to a
criminal act or offense under applicable laws.
c) disclosure of the names of credit cardholders who allegedly refuse to pay
debts, with certain exceptions.
d) threat to take any action that cannot legally be taken.
e) communicating or threat to communicate to any person credit information
which is known to be false, including failure to communicate that a debt is
being disputed.
f) any false representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a cardholder.
g) making contact at unreasonable/inconvenient times or hours which shall
be defined as contact before 6:00 a.m. or after 10:00 p.m., unless the
account is past due for more than sixty (60) days or the cardholder has
5. Courts have the discretion of imposing: (a) imprisonment only; (b) fine
only; OR (c) both. It is entirely possible that only a fine, without
imprisonment, is imposed.
Warrant of Arrest issued Against former President Gloria Arroyo
Posted on November 18, 2011 by Atty. Fred 10 Comments
A warrant of arrest has been issued against former President Gloria
Macapagal-Arroyo in connection with the electoral sabotage filed against her
and other respondents, including former COMELEC Chairman Benjamin
Abalos.
This is non-bailable, so any talk of a watch list or Hold Departure Order (HDO)
is moot at this point. All the accused cannot leave the country. If the
Supreme Court is very busy with all the legal maneuverings of all parties
concerned, it will become even busier in the days to come.
Some say the case was filed in haste. Some say the issuance of the warrant
of arrest is only right. Some say its payback time. Everybody has an opinion.
Its going to be very, very interesting. What do you think?
For the full text of Bar Matter No. 2012, please click here. (As an aside,
you may have noticed that the url of the Supreme Court website was
changed, from www.supremecourt.gov.ph tohttp://sc.judiciary.gov.ph/). I see
a very interesting and passionate debate on this issue (please use the
comment section below). The poll is also found belo
Writ of Amparo: Supreme Court approves Rules
(a) Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is
no known member of the immediate family or relative of the aggrieved
party.
The filing of a petition by the aggrieved party suspends the right of all other
authorized parties to file similar petitions. Likewise, the filing of the petition
by an authorized party on behalf of the aggrieved party suspends the right of
all others, observing the order established herein.
Where can the petition be filed?
The petition may be filed on any day and at any time with the Regional Trial
Court of the place where the threat, act or omission was committed or any of
its elements occurred, or with the Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts. The writ shall be enforceable
anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ shall be
returnable before such court or judge.
When issued by the Sandiganbayan or the Court of Appeals or any of their
justices, it may be returnable before such court or any justice thereof, or to
any Regional Trial
Court of the place where the threat, act or omission was committed or any of
its elements occurred.
When issued by the Supreme Court or any of its justices, it may be
returnable before such Court or any justice thereof, or before the
Sandiganbayan or the Court of Appeals or any of their justices, or to any
Regional Trial Court of the place where the threat, act or omission was
committed or any of its elements occurred.
(d) If the respondent is a public official or employee, the return shall further
state the actions that have been or will still be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence related to the death or disappearance
of the person identified in the petition which may aid in the prosecution of
the person or persons responsible;
(iii) to identify witnesses and obtain statements from them concerning the
death or disappearance;
(iv) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have brought
about the death or disappearance;
(v) to identify and apprehend the person or persons involved in the death or
disappearance; and
(vi) to bring the suspected offenders before a competent court.
The return shall also state other matters relevant to the investigation, its
resolution and the prosecution of the case. A general denial of the
allegations in the petition shall not be allowed. All defenses shall be raised in
the return, otherwise, they shall be deemed waived.
What happens if the respondent fails to file return?
The court, justice or judge shall proceed to hear the petition ex parte or even
without the appearance of the respondent.
How is the nature of the hearing on the petition?
The hearing on the petition shall be summary. However, the court, justice or
judge may call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and admissions from the
parties. The hearing shall be from day to day until completed and given the
same priority as petitions for habeas corpus.
What are the interim reliefs available to the petitioner?
Upon filing of the petition or at anytime before final judgment, the court,
justice or judge may grant any of the following reliefs:
(a) Temporary Protection Order. The court, justice or judge, upon motion or
motu proprio, may order that the petitioner or the aggrieved party and any
member of the immediate family be protected in a government agency or by
an accredited person or private institution capable of keeping and securing
their safety. If the petitioner is an organization, association or institution
referred to in Section 3(c) of the Rule, the protection may be extended to the
officers involved. The Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to the petitioner or the
aggrieved party and any member of the immediate family, in accordance
with guidelines which it shall issue. The accredited persons and private
institutions shall comply with the rules and conditions that may be imposed
by the court, justice or judge.
(b) Inspection Order. The court, justice or judge, upon verified motion and
after due hearing, may order any person in possession or control of a
designated land or other property, to permit entry for the purpose of
inspecting, measuring, surveying, or photographing the property or any
relevant object or operation thereon. The motion shall state in detail the
place or places to be inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party. If the motion is
opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers
to determine the merit of the opposition. The movant must show that the
inspection order is necessary to establish the right of the aggrieved party
alleged to be threatened or violated. The inspection order shall specify the
person or persons authorized to make the inspection and the date, time,
place and manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The order shall
expire five (5) days after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. The court, justice or judge, upon verified motion and
after due hearing, may order any person in possession, custody or control of
any designated documents, papers, books, accounts, letters, photographs,
objects or tangible things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the return, to
produce and permit their inspection, copying or photographing by or on
behalf of the movant. The motion may be opposed on the ground of national
security or of the privileged nature of the information, in which case the
court, justice or judge may conduct a hearing in chambers to determine the
merit of the opposition. The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of all the parties.
(d) Witness Protection Order. The court, justice or judge, upon motion or
motu proprio, may refer the witnesses to the Department of Justice for
admission to the Witness Protection, Security and Benefit Program, pursuant
to Republic Act No. 6981. The court, justice or judge may also refer the
witnesses to other government agencies, or to accredited persons or private
institutions capable of keeping and securing their safety.
Are these interim relieds also available to the respondent?
Yes, but only the interim reliefs of Inspection Order and the Production Order.
These interim orders may be issued only after a verified motion is filed by
the respondent, supported by affidavits or testimonies of witnesses having
personal knowledge of the defenses of the respondent, and after due
hearing.
What is the required burden of proof?
The parties shall establish their claims by substantial evidence. The
respondent who is a private individual or entity must prove that ordinary
diligence as required by applicable laws, rules and regulations was observed
in the performance of duty. The respondent who is a public official or
employee must prove that extraordinary diligence as required by applicable
laws, rules and regulations was observed in the performance of duty.
such reliefs as may be proper and appropriate; otherwise, the privilege shall
be denied.
What happens if the court determines that it cannot proceed for a
valid cause, such as the failure of petitioner or witnesses to appear
due to threats on their lives?
The court shall not dismiss the petition, but shall archive it. The amparo
court may, on its own or upon motion by any party, order the revival of the
petition when ready for further proceedings. The petition shall be dismissed
with prejudice upon failure to prosecute the case after the lapse of two (2)
years from notice to the petitioner of the order archiving the case.
Does the filing of the petition preclude the filing of separate
criminal, civil or administrative actions?
No. However, when a criminal action has been commenced, no separate
petition for the writ shall be filed, but the reliefs under the writ shall be
available by motion in the criminal case, and the procedure under this Rule
shall govern the disposition of the reliefs available under the writ of amparo.
When a criminal action is filed subsequent to the filing of a petition for the
writ, the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed subsequent to a
petition for a writ of amparo, the latter shall be consolidated with the
criminal action. After consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs in the petition.
Santiago vs. Comelec will the Supreme Court overturn its decision?
Posted on October 17, 2006 by Atty. Fred No Comments
(Original post: 31 March 2006; update Lambino petition for peoples
initiative dismissed) InSantiago vs. COMELEC, the Supreme Court ruled that
Republic Act No. 6735, also known as the Peoples Initiative and Referendum
Act, is incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned. This decision was affirmed in the subsequent case of PIRMA vs.
Comelec.
There are well-founded opinions that the sufficiency of R.A. 6735 will again
be brought to the Supreme Court as a result of the on-going signature
campaign through the barangay assemblies [it's now with the SC, courtesy of
Sigaw ng Bayan]. DJB notes how JDV predicted a parliamentary utopia in
four months, while MLQ3 writes about the perfect plan to effect Charter
Change [see also "Lobbying the Supremes"].
The Santiago decision is penned by Chief Justice Davide, with Chief Justice
Narvasa, and Justices Regalado, Romero, Bellosillo, Kapunan, Hermosisima,
Jr. and Torres Jr. concurring in the decision. On the other hand, Now Chief
Justice Panganiban, and Justices Puno andFrancisco, concurred in the result
(dismissal of the petition), but believed that R.A. 6735 is not deficient
(Justices Melo and Mendoza joined the concurring separate opinions). Justice
Vitug is of the opinion that there was no need to determine the sufficiency of
R.A. 6735. From the foregoing list of Justices, only Chief Justice Panganiban
and Justice Puno remain in the present Supreme Court (which now includes
Justice Velasco).
So, if the issue reaches [as it now is with] the Supreme Court, will the
Supreme Court overturnSantiago?
Stare decisis. Under the doctrine of stare decisis, once a point of law has
been established by the court, that point of law will, generally, be followed
by the same court and by all courts of lower rank in subsequent cases where
the same legal issue is raised. Stare decisis proceeds from the first principle
of justice that, absent powerful countervailing considerations, like cases
ought to be decided alike.
This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the peoples sovereign
will, is the bible of this Court. This Court exists to defend and protect
the Constitution. To allow this constitutionally infirm initiative, propelled by
deceptively gathered signatures, to alter basic principles in the Constitution
is to allow a desecration of the Constitution. To allow such alteration and
desecration is to lose this Courts raison detre.
- Justice Carpio, ponente
Lambino vs. COMELEC (G.R. No. 174153),
dismissing the petition for peoples initiative
filed by Raul Lambino, et al.