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What You Need to Know about the Domestic Workers Act or Batas

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

c. P1,500 a month for those employed in other municipalities


The Regional Tripartite and Productivity Wage Boards (RTPWBs) are required
to periodically adjust, if proper, the minimum wage rates of domestic
workers.
What is the manner of paying wages?
Payment of wages shall be made on time directly to the domestic worker to
whom they are due in cash at least once a month. The employer, unless
allowed by the domestic worker through a written consent, shall make no
deductions from the wages other than that which is mandated by law. No
employer shall pay the wages of a domestic worker by means of promissory
notes, vouchers, coupons, tokens, tickets, chits, or any object other than the
cash wage.
Is the kasambahay entitled to 13th-month pay?
The domestic worker is entitled to a thirteenth month pay.
Is the employer required to keep pay slips?
Yes. The employer shall at all times provide the domestic worker with a copy
of the pay slip containing the amount paid in cash every pay day, and
indicating all deductions made, if any.
What is more, copies of the pay slip shall be kept by the employer for a
period of 3 years.
What are additional prohibitions in relation to wages?
Interference in the disposal of wages. It shall be unlawful for the employer to
interfere with the freedom of any domestic worker to dispose of the latters
wages. The employer shall not force, compel or oblige the domestic worker
to purchase merchandise, commodities or other properties from the
employer or from any other person, or otherwise make use of any store or
services of such employer or any other person.
Withholding of wages. It shall be unlawful for an employer, directly or
indirectly, to withhold the wages of the domestic worker. If the domestic
worker leaves without any justifiable reason, any unpaid salary for a period

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.

What is the required weekly rest period?


The domestic worker shall be entitled to at least 24 consecutive hours of rest
in a week. The employer and the domestic worker shall agree in writing on
the schedule of the weekly rest day of the domestic worker, but the
employer shall respect the preference of the domestic worker as to the
weekly rest day when such preference is based on religious grounds. The
domestic worker and the employer may agree on the following:
a. Offsetting a day of absence with a particular rest day
b. Waiving a particular rest day in return for an equivalent daily rate of pay
c. Accumulating rest days not exceeding 5 days, or
d. Other similar arrangements [Back to the top]
How may days are required for leave credits?
A domestic worker who has rendered at least 1 year of service shall be
entitled to an annual service incentive leave of 5 days with pay. Any unused
portion of said annual leave shall not be cumulative or carried over to the
succeeding years. Unused leaves shall not be convertible to cash. [Back to
the top]
7. SSS and other social benefits
A domestic worker who has rendered at least 1 month of service shall be
covered by the Social Security System (SSS), the Philippine Health Insurance
Corporation (PhilHealth), and the Home Development Mutual Fund or Pag-

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]

9. Assignment in another home


The domestic worker and the employer may mutually agree for the former to
temporarily perform a task that is outside the latters household for the
benefit of another household. However, any liability that will be incurred by
the domestic worker on account of such arrangement shall be borne by the
original employer. In addition, such work performed outside the household
shall entitle the domestic worker to an additional payment of not less than
the existing minimum wage rate of a domestic worker. It shall be unlawful for
the original employer to charge any amount from the said household where
the service of the domestic worker was temporarily performed. [Back to the
top]
10. Deposits for loss or damage
Its unlawful for the employer or any other person to require a domestic
worker to make deposits from which deductions shall be made for the
reimbursement of loss or damage to tools, materials, furniture and
equipment in the household. [Back to the top]
11. Prohibition on debt bondage
Its unlawful for the employer or any person acting on behalf of the employer
to place the domestic worker under debt bondage, which refers to the

rendering of service by the domestic worker as security or payment for a


debt where the length and nature of service is not clearly defined or when
the value of the service is not reasonably applied in the payment of the debt.
[Back to the top]
12. Rights and Privileges of Kasambahay
Standard of Treatment
The employer or any member of the household shall not subject a domestic
worker or kasambahay to any kind of abuse nor inflict any form of physical
violence or harassment or any act tending to degrade the dignity of a
domestic worker.
Board, Lodging and Medical Attendance
The employer shall provide for the basic necessities of the domestic worker
to include at least 3 adequate meals a day and humane sleeping
arrangements that ensure safety.
The employer shall provide appropriate rest and assistance to the domestic
worker in case of illnesses and injuries sustained during service without loss
of benefits.
At no instance shall the employer withdraw or hold in abeyance the provision
of these basic necessities as punishment or disciplinary action to the
domestic worker.
Guarantee of Privacy
Respect for the privacy of the domestic worker shall be guaranteed at all
times and shall extend to all forms of communication and personal effects.
This guarantee equally recognizes that the domestic worker is obliged to
render satisfactory service at all times.
Access to Outside Communication
The employer shall grant the domestic worker access to outside
communication during free time: Provided, That in case of emergency,

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;

(b) Gross or habitual neglect or inefficiency by the domestic worker in the


performance of duties;
(c) Fraud or willful breach of the trust reposed by the employer on the
domestic worker;
(d) Commission of a crime or offense by the domestic worker against the
person of the employer or any immediate member of the employers family;
(e) Violation by the domestic worker of the terms and conditions of the
employment contract and other standards set forth under this law;
(f) Any disease prejudicial to the health of the domestic worker, the
employer, or member/s of the household; and
(g) Other causes analogous to the foregoing. [Back to the top]
Related Posts:
International Convention for Domestic Workers
Additional P22 for Workers in Napital Capital Region (NCR), effective
26 May 2011
Primer on the Employment of Night Workers
An Introduction to Probationary Employment
Sexual Harassment (R.A. 7877)
Importation for Personal Use under the amended Intellectual Property Code
1.

Remicar Pre says:


March 11, 2013 at 1:12 am
I just have some concern regarding this Kasambahay Law.
I used to pay for the fare of hired nanny. However, if the amount Php500 or
so, I make an agreement with the nanny that it will be initially deducted from
her salary. Though, I will return it in full by after she stayed for at least 4 or 6
months, depending on the amount. I dont mind shouldering the fare
because I know it is part of the hiring process. However, based from previous
experiences, there are some nannies that used us, order to travel to Manila.
This kind of agreement with them is just a protection for me and avoids
suffering from financial loss.

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.

Remicar Pre says:


March 11, 2013 at 1:17 am
I am reading the Batas Kasambahay to check if I comply with it. I just st have
some concern regarding this law.
I used to pay for the fare of hired nanny. However, if the amount Php500 or
so, I make an agreement with the nanny that it will be initially deducted from
her salary. Though, I will return it in full after she stayed for at least 4 or 6
months, depending on the amount. I dont mind shouldering the fare
because I know it is part of the hiring process. However, based from previous
experiences, there are some nannies that used us in order to travel to
Manila. This kind of agreement with them is just a protection for me and
avoids suffering from financial loss.
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.
Importation for Personal Use under the amended Intellectual
Property Code
Posted on March 7, 2013 by Atty. Fred No Comments
On 28 February 2013, President Benigno Aquino III signed into
law Republic Act No. 10372 [full text], which is an Act Amending Certain
Provisions of Republic Act No. 8293, otherwise known as the Intellectual
Property Code of the Philippines, and for Other Purposes. The amendments
will come into full force 15 days after its publication in at least two
newspapers of general circulation.
A recent uproar centered on the wholesale removal of the sections
on importation for personal use, just one of the substantial
amendments. Raissa Robles believes that the change erased the Filipinos
right to bring home music, movies and books from
abroad.Democracy.net.ph also issued a statement arguing that this change

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?

DOJ Cybercrime Primer


What You Need to Know about the Domestic Workers Act or Batas
Kasambahay
Tagged with: Intellectual Property Code of the Philippines, Republic ACt
10372, Republic Act 8293
Posted in Intellectual Property
DOJ Cybercrime Primer
Posted on January 15, 2013 by Atty. Fred No Comments
With the renewed interest on Republic Act No. 10175, also known as
the Cybercrime Prevention Act of 2012, brought about by todays oral
arguments at the Supreme Court, it might be helpful to re-post the primer
issued by the Department of Justice (DOJ):
1) What is a cybercrime?
A cybercrime is a crime committed with or through the use of information
and communication technologies such as radio, television, cellular phone,
computer and network, and other communication device or application.

2) How is a cybercrime different from a real-world crime?


The main difference between a cybercrime and crime committed in the
physical world is that cybercrime is committed with or through the use of
information and communication technology. Furthermore, cybercrimes are
punishable under special cybercrime laws and subject to distinct law
enforcement provisions.
3) What are the types of cybercrime?
There are various types and kinds of cybercrimes. The 2001 Budapest
Convention on Cybercrime categorizes cybercrime offenses into four: (1)
offences against the confidentiality, integrity and availability of computer
data and systems; (2) computer-related offences; (3) content-related

offences; and (4) offences related to infringements of copyright and related


rights.
4) What is the global trend of cybercrime?
Cybercrime is one of the fastest growing crimes globally. According to Norton
Cyber Crime Report, 431 million adults worldwide were victims of
cybercrimes in 2011. The costs that cybercrimes caused in 2011 amounted
to $114 billion. Globally, the top cybercrimes in 2011 were (1) computer
viruses or malware 54% overall; (2) online Scams 11% overall; and (3)
phishing 10% overall.
5) What is the trend of cybercrime in the Philippines?
In a 2010 report of the security software firm Symantec, 87% of Filipino
internet users were identified as victims of crimes and malicious activities
committed online. The following activities were: (1) malware (virus and
Trojan) invasion; (2) online or phishing scams; (3) sexual predation; and (4)
services in social networking site like Facebook and Twitter.
The Anti-Transnational Crime Division (ATCD) of the Criminal Investigation
and Detection Group (CIDG) of the Philippine National Police (PNP) has
encountered 2,778 referred cases of computer crimes from government
agencies and private individuals nationwide from 2003 to 2012.

6) What are the cybercrime-related laws in the Philippines?


The cybercrime-related laws in the country are:
(1) RA 10175 Cybercrime Prevention Act of 2012, which is currently
suspended due to a TRO issued by the Supreme Court; (2) RA 9995 AntiPhoto and Voyeurism Act of 2009; (3) RA 9725 Anti-Child Pornography Act
of 2009; (4) RA 9208 Anti-Trafficking in Persons Act of 2003; (5) RA 8792

E-Commerce Act of 2000; (6) RA 8484 Access Device Regulation Act of


1998; and (7) RA 4200 or Anti-Wiretapping Law.
7) What and when was the first recorded cybercrime in the
Philippines?
In 2000, Onel de Guzman released the I Love You virus. The case filed
against De Guzman was dismissed at the first stage because there was no
law punishing the deed as of that time in May 2000, in the Philippines.
8) When was a law penalizing computer crimes or cybercrimes
passed?
On 14 June 2000, RA 8792 or the Electronic Commerce Act was signed into
law. RA 8792 positioned the Philippines as the third country to enact an ecommerce law, next to Singapore and Malaysia. The E-Commerce Act placed
the Philippines on the list countries which penalize cybercrime.
9) In the Philippines, have we already convicted a cybercriminal?
Yes. The first one was pursued by the PNP-CIDG; a person was convicted in
September 2005 for pleading guilty of hacking the government portal
gov.ph and other government websites. The NBI pursued a cybercrime
case that led to the second cybercrime conviction; the person used the BPO
call center provider Sitel Philippines Corporation to illegally secure credit card
information from the companys sister firm, Sitel USA. The two convictions
were secured under the Section 33(a) of RA 8972 that penalizes hacking.
10) What is the latest development in anti-cybercrime effort of the
Philippine government?
President Benigno Aquino signed into law RA 10175 or the Cybercrime
Prevention Act of 2012 on September 12, 2012, which adopted the provisions
of the first International Convention on Cybercrime. But the implementation
of the new law which started on October 3, 2o12 was put on hold after 6
days, when the Supreme Court issued a temporary restraining order against
the law last October 9, 2012, after 15 petitions were filed against it.

As of the moment, cybercrime-related cases are dealt with using existing


laws.

Tagged with: cybercrime, Cybercrime Prevention Act of 2012, Department


of Justice, DOJ
Posted in Internet & Technology
10 Rules to Observe in Checkpoints
Posted on January 11, 2013 by Atty. Fred 1 Comment
The recent shootout or rub-out (depending on the result of the ongoing
investigation) in Atimonan, Quezon, brings the focus back to the safety and
rights of citizens when flagged by police authorities in checkpoints. All 13
passengers (including police and military officers) of the 2 vehicles died
during the shooting incident that happened at the checkpoint. Now that the
election period is about to start, more checkpoints will definitely sprout all
over the country.
It may be helpful to revisit the 10 CHECKPOINT RULES that MUST be
observed by authorities in setting up and manning checkpoints. These rules
are contained in Advisory Opinion No. 1issued by the Department of
Justice (DOJ) on 24 Marchy 2011.
1. Checkpoint must be well-lighted, properly identified and manned by
uniformed personnel.
2. Upon approach, slow down, dim headlights and turn on cabin lights. Never
step out of the vehicle.
3. Lock all doors. Only visual search is allowed.
4. Do not submit to a physical or bodily search.
5. You are not obliged to open glove compartment, trunk or bags.
6. Ordinary/routine questions may be asked. Be courteous but firm with
answers.
7. Assert your rights, have presence of mind and do not panic.

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.

Why Punish Responsible Owners of Guns?


Posted on January 7, 2013 by Atty. Fred No Comments
Lets start with the figures. In contrast to the 1:500 ratio (1 police officer to
every 500 Filipinos) desired by the government, the current ratio
is 1:662 nationwide. Of course, thats not evenly distributed, with the ratio
spiking to 1:1,224 in Calabarzon. The Philippine National Police (PNP) is the
first to admit that it is undermanned.
The reality on the ground is different. Take away the cops who are assigned
in malls, buildings and other government installations. Take away the cops
who are assigned as security escorts of politicians and other government
officers. Take away the cops on crowd control duty during rallies. Take away
the cops used to augment security preparations for visiting politicians and
dignitaries. Take away the cops who are doing office work. How many are left
for actual street patrol?
Now, lets say a criminal is in your house with an unlicensed gun, of
course and you call the police for assistance. Do you know what number
to call? And if you happen to know the emergency number, how long will the
police authorities respond? Again, the police is seriously undermanned.
If a licensed gun is used in a crime, the police can readily identify the owner
because theres a database. The same cannot be said of unlicensed
firearms. If the gun involved in the death of Stephanie Nicole Ella is licensed,

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

reference. We shall update this post to include new issues we encounter


(again, please search through the other posts or the comments to check if a
question related to yours was already addressed). As always, please
remember that nothing should here should be taken as legal advice (for
clients, please click here).
If I file a petition for legal separation, can I use my own sexual
infidelity as a ground?
It is interesting to note that among the grounds for legal separation, as listed
above, only sexual infidelity or perversion is not qualified by the phrase of
the respondent or by respondent. This may give the impression that the
sexual infidelity of the petitioner, or the one who filed the petition, may be
used as a ground in legal separation. We must consider, however, that legal
separation is filed by the innocent spouse or the aggrieved party against
the guilty spouse.
Annulment, Divorce and Legal Separation in the Philippines: Questions and
Answers
Posted on January 16, 2007 by Atty. Fred 332 Comments
There are many questions relating to annulment and divorce in the
Philippines, and many of the concerns of our readers had already been
addressed in previous articles. Nevertheless, to consolidate everything for
everyones easy reference, here are the FAQs on annulment and divorce in
the Philippines:
Is divorce allowed under Philippine laws?
No, divorce is not allowed in the Philippines. However, there are certain
instances wherein the divorce secured abroad by the foreigner-spouse, and
even by former Filipinos, are recognized under Philippine laws.
Would it make any difference if I marry abroad where divorce is
allowed?
No. Filipinos are covered by this prohibition based on the nationality
principle, regardless of wherever they get married (and regardless where
they get a decree of divorce).

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.
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.
Is annulment different from a declaration of nullity of marriage?
Yes. In essence, annulment applies to a marriage that is considered valid,
but there are grounds to nullify it. A declaration of nullity of marriage, on
the other hand, applies to marriages that are void or invalid from the very
beginning. In other words, it was never valid in the first place.
Also, an action for annulment of voidable marriages may prescribe, while an
action for declaration of nullity of marriage does not prescribe.
So, if a marriage is void from the very beginning (void ab initio),
theres no need to file anything in court?
For purposes of remarriage, there must be a court order declaring the
marriage as null and void. Entering into a subsequent marriage without such
court declaration means that: (a) the subsequent marriage is void; and (b)
the parties open themselves to a possible charge ofbigamy.

What if no marriage certificate could be found?


Justice Sempio-Dy, in the Handbook of on the Family Code of the
Philippines (p. 26, 1997 reprint), says: The marriage certificate is not an

essential or formal requisite of marriage without which the marriage will be


void. An oral marriage is, therefore, valid, and failure of a party to sign the
marriage certificate or the omission of the solemnizing officer to send a copy
of the marriage certificate to the proper local civil registrar, does not
invalidate the marriage. Also the mere fact that no record of marriage can be
found, does not invalidate the marriage provided all the requisites for its
validity are present. (Citations omitted)

What are the grounds for annulment?


1. Lack of parental consent in certain cases. If a party is 18 years or over, but
below 21, and the marriage was solemnized without the consent of the
parents/guardian. However, the marriage is validated if, upon reaching 21,
the spouses freely cohabited with the other and both lived together as
husband and wife.
2. Insanity. A marriage may be annulled if, at the time of marriage, either
party was of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife.
3. Fraud. The consent of either party was obtained by fraud, unless such
party afterwards, with full knowledge of the facts constituting the fraud,
freely cohabited with the other as husband and wife. Fraud includes: (i) nondisclosure of a previous conviction by final judgment of the other party of a
crime involving moral turpitude; (ii) concealment by the wife of the fact that
at the time of the marriage, she was pregnant by a man other than her
husband; (iii) concealment of sexually transmissible disease or STD,
regardless of its nature, existing at the time of the marriage; or (iv)
concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage. However, no other
misrepresentation or deceit as to character, health, rank, fortune or chastity
shall constitute such fraud as will give grounds for action for the annulment
of marriage.

3. Force, intimidation or undue influence. If the consent of either party


was obtained by any of these means, except in cases wherein the
force, intimidation or undue influence having disappeared or ceased,
the complaining party thereafter freely cohabited with the other as
husband and wife.
4.
5. Impotence. At the time of marriage, either party was physically incapable
of consummating the marriage with the other, and such incapacity continues
and appears to be incurable. Impotence is different from being infertile.
6. STD. If, at the time of marriage, either party was afflicted with a sexuallytransmissible disease found to be serious and appears to be incurable. If the
STD is not serious or is curable, it may still constitute fraud (see No. 3
above).
What if a spouse discovers that his/her spouse is a homosexual or is
violent, can he/she ask for annulment?
Homosexuality or physical violence, by themselves, are not sufficient to
nullify a marriage. At the very least, however, these grounds may be used as
basis for legal separation.
How is legal separation different from annulment?
The basic difference is this in legal separation, the spouses are still
considered married to each other, and, thus, may not remarry.
What are the grounds for legal separation?
1. Repeated physical violence or grossly abusive conduct directed against
the petitioner, a common child, or a child of the petitioner.
2. Physical violence or moral pressure to compel the petitioner to change
religious or political affiliation.

3. Attempt of respondent to corrupt or induce the petitioner, a common


child, or a child of the petitioner, to engage in prostitution, or connivance in
such corruption or inducement.
4. Final judgment sentencing the respondent to imprisonment of more than
six years, even if pardoned.
5. Drug addiction or habitual alcoholism of the respondent.
6. Lesbianism or homosexuality of the respondent.
7. Contracting by the respondent of a subsequent bigamous marriage,
whether in the Philippines or abroad.
8. Sexual infidelity or perversion.
9. Attempt by the respondent against the life of the petitioner.
10. Abandonment of petitioner by respondent without justifiable cause for
more than one year.
The term child shall include a child by nature or by adoption.
What happens if after learning that your husband (or wife) is
unfaithful (No. 8 above), you still co-habitate with him/her?
This may be construed as condonation, which is a defense in actions for
legal separation. In addition to condonation, the following are the defenses
in legal separation:
1. Consent.
2. Connivance (in the commission of the offense or act constituting the
ground for legal separation).
3. Mutual guilt (both parties have given ground for legal separation).
4. Collusion (to obtain decree of legal separation).
5. Prescription (5 years from the occurence of the cause for legal
separation).

If youre separated from your spouse for 4 years, is that a sufficient


ground for annulment?
No. De facto separation is not a ground for annulment. It doesnt matter if
the spouses lived apart or did not see each other for 2, 10, 20 or more years.
However, the absence of 2 or 4 years, depending on the circumstances, may
be enough to ask the court for a declaration ofpresumptive death of the
absent spouse, in which case the petitioner may again re-marry.
What are the grounds for declaration of nullity of marriage?
1. Minority (those contracted by any party below 18 years of age even with
the consent of parents or guardians).
2. Lack of authority of solemnizing officer (those solemnized by any person
not legally authorized to perform marriages, unless such marriages were
contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so).
3. Absence of marriage license (except in certain cases).
4. Bigamous or polygamous marriages (except in cases where the other
spouse is declared aspresumptively dead).
5. Mistake in identity (those contracted through mistake of one contracting
party as to the identity of the other).

6. After securing a judgement of annulment or of asolute nullity of mariage,


the parties, before entering into the subsequent marriage, failed to record
with the appropriate registry the: (i) partition and distribute the properties of
the first marriage; and (ii) delivery of the childrens presumptive legitime.
7. Incestous marriages (between ascendants and descendants of any degree,
between brothers and sisters, whether of the full or half blood).
8. Void by reason of public policy. Marriages between (i) collateral blood
relatives whether legitimate or illegitimate, up to the fourth civil degree; (ii)
step-parents and step-children; (iii) parents-in-law and children-in-law; (iv)
adopting parent and the adopted child; (v) surviving spouse of the adopting
parent and the adopted child; (vi) surviving spouse of the adopted child and

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.

Where a marriage between a Filipino citizen and a foreigner is validly


celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.
What are circumstances that would make Article (Family Code)
applicable?
We have a basic discussion on Article 26 of the Family Code. Included in that
discussion are the two elements that must be shown before the second
paragraph of Article 26 is applied:
1. There is a valid marriage that has been celebrated between a
Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating
him or her to remarry.
Is this provision applicable to former Filipinos?
Yes. Article 26 was later interpreted by the Supreme Court to include cases
involving parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a foreign
citizen and obtains a divorce decree. 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. (Philippines vs. Orbecido III, G.R. No. 154380, 5 October
2005).
Article 26 provides that the divorce must be secured by the
foreigner-spouse. What if the foreigner-spouse continually
maltreats the Filipino/Filipina spouse, isnt it unfair that the
Filipino/Filipina cant initiate divorce?

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

marital bond through annulment. In lieu of divorce, married persons resort to


annulment and accordingto the Office of the Solicitor General (OSG), there is
an alarming increase in the number of annulment cases in the Philippines.
The number of annulment cases filed in courts, which never breached the
7,000-mark prior to 2006, rose to 7,138 (2006) and 7,753 (2007).

Existing Philippine Laws regarding Divorce


Philippine laws do not provide for absolute divorce, but divorce was available
in certain periods in Philippine history. Divorce was allowed under the Divorce
Law of 1917 (Act No. 2710) and during the Japanese occupation, pursuant to
Executive Order No. 141 (1943). As the law stands today, however, a
marriage between two Filipinos cannot be dissolved even by a divorce
obtained abroad. In mixed marriages involving a Filipino and a foreigner (or
former Filipinos), Article 26 of the Family Code allows the former to contract a
subsequent marriage in case the divorce is validly obtained abroad by the
alien spouse capacitating him or her to remarry.
It is not really accurate to say that there is absolutely no divorce in the
Philippines. Under Presidential Decree No. 1083, also known as the Code of
Muslim Personal Laws of the Philippines, divorce is allowed in certain
instances, but this law applies only when both parties are Muslims, or
wherein only the male party is a Muslim and the marriage is solemnized in
accordance with Muslim law in any part of the Philippines. For the rest of
Filipinos, therefore, divorce is not available.
Efforts to Legalize Divorce in the Philippines
In 2005, party-list representative Liza Masa of Gabriela filed a divorce
bill. According to Rep. Masa, the annulment process has been expensive for
most Filipinos and has not been responsive to the needs of women,
particularly those suffering from marital abuse. In 2001, similar bills were
filed in the Senate (Bill No. 782), introduced by Senator Rodolfo G. Biazon,
and House of Representatives (Bill No. 878), introduced by Honorable
Bellaflor J. Angara-Castillo. In 1999, Representative Manuel C. Ortega filed
House Bill No. 6993, seeking for the legalization of divorce. The highlights of
the explanatory note of House Bill No. 6993, in support for divorce, are:

Not all marriages succeed as a permanent union. An increasing


number of married individuals find themselves subjected by their marriage
partners to physical violence, grossly abusive conduct and other acts of or
offenses that rather than promote blissful, harmonious conjugal and
family life impair, debase or destroy the legitimate ends of the marriage
relationship. The bill seeks to give spouses which are shacked by an
irretrievably broken marriage the freedom to remarry and possibly succeed
in attaining a stable and fulfilling family life.

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.

6. Absolute divorce violates the concept of marriage, a permanent union of


man and woman. The Family Code defines marriage as a permanent union of
man and woman (Art. 1). The Civil Code also provides for the presumption of
the solidarity of the family and the indissolubility of marriage bonds (Art.
220).
Absolute divorce destroys the very concept of family as an inviolable social
institution. The purpose of the proponents of the Senate and House Bills that

it will give an opportunity for spouses to separate from an intolerable spouse


and by entering into a new marriage is not altogether an assurance that the
new marriage will be a happy and permanent one. The experience in
countries where divorces are allowed and easily obtained, such as the United
States, is that people divorces have experienced multiple divorces and have
remarried several times in their selfish desire to get rid of unwanted spouses
by intentionally creating the cause of the divorce.
There was little interest in our previous post calling for arguments regarding
the legalization of divorce in the Philippines. Maybe no one reads this site,
although it could also be reflective of the fact that people are still not
comfortable discussing divorce in the open. The informal poll, on the other
hand, revealed that 79% favors divorce. Lets continue the poll below.
Change of name without court intervention (R.A. 9048)
Posted on October 20, 2006 by Atty. Fred 194 Comments
Its now easier to ask for corrections in first names and typographical errors
under Republic Act No. 9048, which took effect on 22 April 2001. Under this
law, the city or municipal civil registrar (or the consul general) may correct
a clerical or typographical error in an entry, or change the first name or
nickname in the civil register without need of a court order. The law
characterizes clerical or typographical error as:
xxx a mistake committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register that is harmless
and innocuous, such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the understanding, and can be
corrected or changed only by reference to other existing record or records:
Provided, however, That no correction must involve the change of
nationality, age, status or sex of the petitioner.

Based on this characterization, theres a wide discretion in interpreting what


constitutes a clerical or typographical error. Theres no definite list and an
applicant may show through documents that a particular entry except
nationality, age, status or sex is erroneous. In onecase, the SC noted that
the changes sought (surname of the son, the date of the parents wedding

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

co-equal branches of government. The Constitution also provides an outline


of how gridlocks among the branches of government are resolved. A
constitutional crisis exists when the Constitution or the legal system does not
provide for a mechanism or framework to resolve the gridlock or controversy.
The Philippine Constitution provides for a system of checks and balances.
While each branch is supreme in its own sphere, the Constitution also
provides for a system for each branch to check the other branches. The
Constitution provides the ONLY way for a justice of the Supreme Court, the
Chief Justice included, to be removed from office throughimpeachment.
The Constitution grants Congress the power of impeachment.
Of course, both Congress and the President cannot arrogate unto themselves
the judicial power given to the courts under the Constitution. Judicial power
includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government. If Congress or the Executive has
any problem with that, then the solution is to amend the Constitution, not
destroy the institution.

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)

Total Voters: 392


Should Pres. Gloria Arroyo run in House of Representatives?
Posted on November 30, 2009 by Atty. Fred 19 Comments
Lets start this discussion with a brief backgrounder on the three branches of
government. The Judiciary is headed by the Chief Justice. The Legislature is
divided into the Senate (President of the Senate) and the House of
Representatives (Speaker of the House). The executive department is
headed by the President.
Its not unusual for members of the Legislative Branch to cross over to the
other branches of government. Chief Justice Hilario Davide was formerly an
Assemblyman representing Cebu. President Estrada, among others, used to
be a Senator. Its also not unusual for members of the Judiciary to
subsequently serve in the other branches of government. The late Marcelo B.
Fernan became a Senator after his service as Chief Justice of the Supreme
Court.
But its unusual for a President to become a member of Congress. No
President, as far as I know, sought to be elected as a Senator. Certainly no
President sought a position in the House of Representatives.
There are talks that Pres. Gloria Macapagal-Arroyo, after the end of her
Presidency in 2010, would run for Congress also in 2010 as a
Representative of Pampanga. A former President serving as a
congresswoman. Theres no legal prohibition, though I believe that its not
proper. As to why, I cant put my finger on it. Maybe you have an idea.
Credit cards and unfair collection practices
Posted on June 21, 2007 by Atty. Fred 1,713 Comments
There are a number of good reasons in favor of having and using a credit
card. Its like owning a gun its really a matter of how you use it. I know, not
because I own a gun, but because Ive handled an international credit card
institution for years.
Still, we all know the possible adverse results in the unchecked use of
plastics or credit cards, such as this one: THERES a credit-card horror
story thats become some sort of an urban legend: A television personality,

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

given express permission or said times are the only reasonable or


convenient opportunities for contact.
As a rule, banks, subsidiary/affiliate credit card companies, collection
agencies, counsels and other agents may resort to all reasonable and legally
permissible means to collect amounts due them under the credit card
agreement. However, in the exercise of their rights and performance of
duties, they must observe good faith and reasonable conduct and refrain
from engaging in unscrupulous or untoward acts, including those
enumerated above.
I was reminded of this topic when, just last week, I handled my first case
representing a credit card holder. This is something new to me because, as
noted above, I was at the other side of the fence, so to speak. Maybe I should
discuss more relevant topics on credit cards. (Read the full text of
BSP Circular 454, series of 2004. See also: Credit cards How to Stay Ahead
of Runaway Credit Card Debt.)

What would you do as a Credit Card Company?


Posted on November 3, 2009 by Atty. Fred 13 Comments
There seems to be a consensus that certain practices of some credit card
collection agencies go beyond what is fair and reasonable, something which
is officially recognized when no less than the Bangko Sentral ng
Pilipinas issued the rules prohibiting certain unfair collection practices. For a
change of perspective, put yourself into the shoes of credit card companies
and ask yourself what would you do under the following circumstances:
1. You are in the credit card business and the business basically involves
giving a fixed credit line to persons. As long as the cardholder stays within
the credit limit, he could borrow the money from you. Convenient loan on
demand.
2. Banks and other financial institutions require collateral for loans. This is a
security in case a borrower doesnt pay up on time. The process is long and
the requirements abound. Interest rate and charges are generally higher for
loans without collaterals because the risk significantly increases.

3. As a credit card company, you dont charge interests or penalties as long


as your cardholder pays the entire borrowed amount when it falls due. Your
card holders know, or should know, this. Yet, so many decide to pay ONLY the
minimum monthly amount.
4. Conversely, you charge interest when the borrower pays only the
minimum monthly amount. You also charge penalties and surcharges in case
of arrears. You hire collectors to collect the arrears. You know that your
collectors are just doing their job. You also know that since theyre on the
front line, much abuse and disdain, undeserved or otherwise, would be
heaped on them.
5. Your cardholders also know that they must spend within their means, that
they must use the credit card wisely, that they must pay what they owe.
6. You face not only cardholders who run from their debts, but also credit
card frauds. You deal not only with one or a hundred card holders, talking to
them whenever they fail to pay. Youre facing hundreds of thousands of
cardholders.
7. You when someone borrows money, they know when it is due. In other
words, there is some sort of promise to pay on a certain date. You also know
that when its time to call on the promise to pay, sometimes cardholders
cant keep that promise for one reason or another. You also know that going
through each reason would be a logistical impossibility.
Now, if a big chunk of these cardholders fail or refuse to pay, what would you
do? How would you collect their debts? (This post is reposted here.)

Bouncing Checks (BP 22): An Extended Discussion


Posted on September 17, 2010 by Atty. Fred 8 Comments
(This is a four-part discussion on Bouncing Checks. See the pages at bottom
of post.)
Checks will always be an integral part of business, which is why we have a
number of discussions regarding checks (see Bouncing Checks [BP 22]). This
time lets have a more extensive discussion on bouncing checks.

What is the law that punishes bounced checks?


The Bouncing Checks Law, or Batas Pambansa (BP) Blg. 22, is a law that
governs the criminal liability arising from the issuance of bounced checks.
The full title of BP 22: An Act Penalizing the Making or Drawing and
Issuance of a Check Without Sufficient Funds or Credit and for Other
Purposes (see full text here). In certain instances, the same acts may also
give rise to another criminal liability for estafa under the Revised Penal Code
(see discussion in part 4 below).

Whats the reason or rationale for BP 22?


BP 22 is intended to prohibit the making of worthless checks and putting
them in circulation. Even years ago, the approximate value of bouncing
checks was about 200 million pesos per day. The issuance of bouncing
checks is a crime not only against property. The magnitude of the crime has
an adverse effect on the greater public interest. The stability and commercial
value of checks as currency substitutes will be seriously affected. This, of
course, has serious repercussions in trade and in banking communities.

Does BP 22 violate the Constitutional mandate that no person shall


be imprisoned for debt?
It has been argued that BP 22 in reality punishes the non-payment of debt.
However, while it is true that no person can be imprisoned for debt, what BP
22 punishes is the act of issuing bad checks, and not the failure to pay a
debt. Its not a bad debt law; its rather a bad check law. Its not
designed to coerce a debtor to pay his debt.
Does BP 22 impairs the freedom of people to enter into contracts?
The Constitution also guarantees the right to enter into contract. Each one
should be responsible for the contracts entered into. If you get into a bad
bargain, if you get a bad check, then its your fault for not making sure that
the other person is trustworthy. Checks, however, are not simple contracts
between two persons. It is a commercial instrument which, in this modem

day and age, has become a convenient substitute for money. It is an


integral part of the banking system. Besides, what the law protects are
lawful contracts.

Bouncing Checks (B.P. 22)


Posted on October 18, 2006 by Atty. Fred 116 Comments
Some people still have this misplaced confidence in the deterrent effect of
Batas Pambansa (BP) Blg. 22, also known as the Bouncing Checks Law (full
text here). Here are some things a layman should know:
1. The issuer is not automatically liable simply because the check
bounced. A check generally bounces when dishonored upon presentment
(reasons include, account closed, drawn against insufficient funds or DAIF).
However, it is indispensable that the issuer must be notified in WRITING
about the fact of dishonor, and he has 5 days from receipt to pay the value
of the check or make arrangements for the payment thereof. (Please see
update on this matter at thePhilippine e-Legal Forum).
2. Filing fees are generally not required for criminal cases. For B.P. 22 cases,
however, the complainant is required to pay the filing fees (based on the
value of the check/s and the damages claimed, just like in civil cases) upon
filing of the case in court.
3. One major deterrent against bouncing checks is the threat of a warrant of
arrest being issued once the criminal case is filed in court. This is no longer
true. No warrant of arrest is issued unless the accused fails to appear when
required by the court.
4. Even if a criminal case under B.P. 22 is filed, the court cant issue a holddeparture order (HDO). All violations of the Bouncing Checks Law, regardless
of the amount involved, are filed only with the municipal/metropolitan trial
courts. These courts cannot issue an HDO.

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?

Rule on Mandatory Legal Aid Service issued by Supreme Court


Posted on February 17, 2009 by Atty. Fred 30 Comments
Im not sure if other professionals are required to render free service to the
community. Lawyers, on the other hand, are now required to provide free
legal aid service. The Supreme Court recently issued the Rule on
Mandatory Legal Aid Service. As provided under Bar Matter No. 2012,
all practicing lawyers must render a minimum of sixty (60) hours of free
legal aid services to indigent litigants in a year. The minimum amount of time
is spread within twelve (12) months, which means that a practicing lawyer
must render a minimum of five (5) hours of free legal aid services each
month.
Not all lawyers are covered. The Rule defines a practicing lawyer
Practicing lawyers are members of the Philippine Bar who appear for and in
behalf of parties in courts of law and quasi-judicial agencies, including but

not limited to the National Labor Relations Commission, National Conciliation


and Mediation Board, Department of Labor and Employment Regional
Offices, Department of Agrarian Reform Adjudication Board and National
Commission for Indigenous Peoples. The term practicing lawyers
shall exclude:
(i) Government employees and incumbent elective officials not allowed by
law to practice;
(ii) Lawyers who by law are not allowed to appear in court;
(iii) Supervising lawyers of students enrolled in law student practice in duly
accredited legal clinics of law schools and lawyers of non-governmental
organizations (NGOs) and peoples organizations (POs) like the Free Legal
Assistance Group who by the nature of their work already render free legal
aid to indigent and pauper litigants and
(iv) Lawyers not covered under subparagraphs (i) to (iii) including those who
are employed in the private sector but do not appear for and in behalf of
parties in courts of law and quasi-judicial agencies.
The Rule on Mandatory Legal Aid Service, which was published in
the PhilStar and Inquireron 14 February 2009, takes effect on 1 July 2009. A
subsequent en banc Resolution, however, deferred the effectivity to 1
January 2010.

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

Posted on September 28, 2007 by Atty. Fred No Comments


The Supreme Court already approved the Rule on the Writ of Amparo (A.M.
No. 07-9-12-SC), which is a remedy available to any person whose right to
life, liberty, and security has been violated or is threatened with violation by
an unlawful act or omission of a public official or employee, or of a private
individual or entity. The full text of the Rule, which shall take effect on 24
October 2007, is here. Heres the Q&A:
What is the writ of amparo?
It is a remedy available to any person whose right to life, liberty, and security
has been violated or is threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or entity.
The writ covers extralegal killings and enforced disappearances or threats
thereof.
What rule governs petitions for and the issuance of a writ of
amparo?
It is governed by The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC full
text), which was approved by the Supreme Court on 25 September 2007.
This Rule also governs existing cases involving extralegal killings and
enforced disappearances or threats thereof.
What is the Supreme Courts basis in issuing the Rule?
The Rule was drafted pursuant to the Supreme Courts constitutional power
to promulgate rules for the protection and enforcement of constitutional
rights (Constitution, Art. VIII, Sec. 5[5]).
When does the Rule take effect?
The Rule takes effect on 24 October 2007, following its publication in three
(3) newspapers of general circulation.
Who may file a petition for the issuance of a writ of amparo?
The petition may be filed by the aggrieved party or by any qualified person
or entity in the following order:

(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.

How much is the docket or filing fees for the petition?


There is NO docket and other lawful fees for the petition. The court, justice or
judge shall docket the petition and act upon it immediately.
What are the required contents of the petition?
The petition shall be signed and verified and shall allege the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for
the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine the fate
or whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(f) The relief prayed for the petition may include a general prayer for other
just and equitable reliefs.

When is the writ of amparo issued?


Upon the filing of the petition, the court, justice or judge shall immediately
order the issuance of the writ if on its face it ought to issue. The clerk of
court shall issue the writ under the seal of the court; or in case of urgent
necessity, the justice or the judge may issue the writ under his or her own
hand, and may deputize any officer or person to serve it. The writ shall also
set the date and time for summary hearing of the petition which shall not be
later than seven (7) days from the date of its issuance.
Is there any penalty in case of refusal to issue or serve the writ?
Yes. A clerk of court who refuses to issue the writ after its allowance, or a
deputized person who refuses to serve the same, shall be punished by the
court, justice or judge for contempt without prejudice to other disciplinary
actions.
How is the writ of amparo served?
The writ is served on the respondent by a judicial officer or by a person
deputized by the court, justice or judge who shall retain a copy on which to
make a return of service. In case the writ cannot be served personally on the
respondent, the rules on substituted service shall apply.
After the writ is served, what should the respondent do?
Within seventy-two (72) hours after service of the writ, the respondent shall
file a verified written return together with supporting affidavits which shall,
among other things, contain the following:
(a) The lawful defenses to show that the respondent did not violate or
threaten with violation the right to life, liberty and security of the aggrieved
party, through any act or omission;
(b) The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible
for the threat, act or omission;
(c) All relevant information in the possession of the respondent pertaining to
the threat, act or omission against the aggrieved party; and

(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.

Can the respondent invoke the legal presumption (Rules of Court,


Rule 131, Sec. 3[m]) that official duty has been regularly performed?
No. The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed to evade
responsibility or liability.
How long does the court have in deciding the petition?
The court shall render judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations in the petition are proven
by substantial evidence, the court shall grant the privilege of the writ and

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?

As mentioned earlier, the decision in a possible petition directly involving


R.A. 6735 could go either way sustain or reverse Santiago and the
decision will still have sufficient basis. In fact, the dissenting opinions of Puno
and Panganiban contain sufficient discussion that may serve as the basis of
the present Supreme Court should it choose to reverse Santiago.

However, in my humble opinion, Santiago should, and will, remain.


First the Supreme Court need not decide this issue. The proposed
amendments entail an extensive and systematic changes in Articles VI (The

Legislative Department) and VII (The Executive Department), as well as other


related provisions, of the Constitution. This constitutes a revision, and not
merely an amendment (please refer to discussion of Justice Isagani Cruz in
yesterdays Inquirer). It is settled that, with respect to the Constitution,
peoples initiative is limited to amendments, not revisions. Therefore, any
petition through peoples initiative involving a change of the system of
government from presidential to parliamentary is contrary to Article XVII,
Section 1 of the Constitution, and theres no need to revisit R.A. 6735.
[Through the concept of auto-limitation, the people, by ratifying the 1987
Constitution, limited the exercise of people's initiative only to amendments]
Second assuming that revisiting Santiago is inevitable, it should be
sustained. R.A. 6735 extensively discussed and provides for the mechanism
in initiative for ordinary laws. With respect to the Constitution which is the
fundamental law and is the basis of all laws passed by Congress R.A. 6735
is seriously deficient. While the Constitution is the highest law of the land, it
received only scant consideration by Congress when it passed R.A. 6735. It
may be true that the INTENT of R.A. 6735 is to include initiative for the
Constitution. However, when the plain text of the law is seriously defective,
no amount of intent or interpretation will save it. Besides, the Constitution
specifically granted this power on Congress not the COMELEC or the courts.
Both the Constitution and the Supreme Court have stabilizing functions. The
Constitution, while not irrepealable, should withstand time and generations.
It should be changed only when it is indubitably shown that theres a need to
change it. It should not be changed to serve the purpose of only a few, and
the people must first undertand these changes through extensive and
meaningful debates and consultations. Right now, its the other way around:
draft the proposals first, then try to make the people understand or give a
semblance that they understand through signatures.
With respect to jurisprudence, there have been instances when the Supreme
Court changed its stand. Labor is the obvious example. However, the issue
on peoples initiative with respect to the Constitution does not affect an
ordinary law. It concerns the fundamental and hightest law of the land. The
Supreme Court already said that its insufficient and its up for Congress to
fill the gap. This is explicitly stated in the Santiago decision:

We feel, however, that the system of initiative to propose amendments to


the Constitution should no longer be kept in the cold; it should be given flesh
and blood, energy and strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation
of the right of the people under that system.
So, what did Congress do?
Republic Act 6735 now sufficient?
Posted on November 25, 2006 by Atty. Fred 5 Comments
Dean Jorge Bocobo has an interesting observation on the Supreme
Courts Resolution denyingthe motions to reconsider the dismissal of the
petition for peoples initiative. The minute resolution pertinently reads:
Ten (10) Members of the Court reiterate their position, as shown by their
various opinions already given when the Decision herein was promulgated,
that Republic Act No. 6735 is sufficient and adequate to amend the
Constitution thru a peoples initiative.
Now, does this single sentence constitute a reversal of the ruling in Santiago
vs. COMELECincomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned?

A minute resolution. The Supreme Court is not compelled to adopt a


definite and stringent rule on how its judgment shall be framed. It has long
been settled that the Supreme Court has discretion to decide whether a
minute resolution should be used in lieu of a full-blown decision in any
particular case. Depending on the tenor, a minute resolution has the same
effect as any decision.

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.

The Santiago vs. COMELEC doctrine. The ruling in Santiago vs.


COMELEC may be summarized in this manner: RA 6735, also known as the
Peoples Initiative and Referendum Ac, is incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Santiago was decided by
the Supreme Court en banc, which means that it may be overturned only in
another en banc decision and only when necessary.
The Lambino vs. COMELEC ruling. The Supreme Courts ruling in Lambino
vs. COMELEC, in contrast to the Santiago ruling, states that there is no need
to revisit the sufficiency of R.A. 6735. In the words of the Supreme Court:
There is no need to revisit this Courts ruling in Santiago declaring RA 6735
incomplete, inadequate or wanting in essential terms and conditions to
cover the system of initiative to amend the Constitution.
In other words, any discussion on the sufficiency of RA 6735 is an obiter, and
the subsequent reiteration of the separate opinions of the 10 members of
the Supreme Court does not change that fact.
Still, the Supreme Court left the door wide open for future proponents of
peoples initiative. It can be argued that the reiteration of the 10 votes in
favor of the sufficiency of RA 6735 has the effect of overturning the Santiago
ruling. In any case, with or without such reiteration, the Supreme Court is
not precluded from revisiting the Santiago ruling in future controversies.
One of the effects of the reiteration is this: When a petition for peoples
initiative is filed in the future, the COMELEC can grant the petition on the
basis of the reiteration of the sufficiency of RA 6735. In other words,
proponents of future moves for a Charter Change have a better fighting
chance.
Defending against desecration of Constitution
Posted on October 25, 2006 by Atty. Fred No Comments

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.

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