The 2009 Philippine Blog Awards

Tuesday, December 15, 2009

TAX TALKS: Are Jeepneys considered Automobiles?


In Wikipedia, an automobile is a wheeled motor vehicle used for transporting passengers, which also carries its own engine or motor. Most definitions of the term specify that automobiles are designed to run primarily on roads, to have seating for one to eight people, to typically have four wheels, and to be constructed principally for the transport of people rather than goods.

With the above definition, No doubt that Jeepney is an automobile. Jeepneys are everywhere in Manila - all shapes, sizes and colour configurations. It is the most popular means of public transportation in the Philippines particularly in the cities and towns. In fact, jeepney is the most efficient and cheapest mode of transportation in big cities including Metro Manila and Cebu, and for long distance destinations in the provinces.

So why am I asking whether the jeepney is considered an automobile?

Well, under Republic Act No. 9224 which was approved into law last August 29, 2003, Jeep/jeepney/jeepney substitutes are not considered automobile for the purpose of excise tax.

Under the Act, there shall be levied, assessed and collected an ad valorem tax on automobiles based on the manufacturer's or importer's selling price, net of excise and value-added taxes. As used in the Act, Automobile shall mean any four (4) or more wheeled motor vehicle regardless of seating capacity, which is propelled by gasoline, diesel, electricity or any other motive power: provided, that for purposes of this Act, buses, trucks, cargo vans, jeeps/jeepneys/jeepney substitutes, single cab chassis, and special-purpose vehicles shall not be considered as automobiles.

Thus, "Philippine jeep or jeepney" as defined in the Act as the jitney type locally designed and manufactured generally from surplus parts and components as well as jeepney substitutes that are manufactured from brand-new single cab chassis or cowl chassis and locally customized rear body that has continuous sideway row seats with open rear door and without retractable glass windows are not considered automobiles. And no ad valorem tax can be levied or collected.

Friday, November 27, 2009

PERSONAL PICK: Maguindanao Massacre

I joined the Facebook group
We Condem the Maguindanao Massacre, Justice for the Victims!
Like the almost three (3) thousand members of the group, I share the group description
"All Filipinos should come out and condemn the Maguindanao massacre. let us not let this pass, let the world know, specially the Philippine government that we will not stop until justice is delivered to the victims of the Maguindanao massacre.

We have come to be known to ourselves and to the world as a nation that suffered from the Ondoy and Pepeng, came together as one to help each other, drew strength from each other then to a glorious and magnificent definition of a Filipino capable of being a champion boxer making world boxing history admired by all to a simple man in Cavite who on his own efforts took the pains of educating his neighbors by pushing a push cart through the streets and becoming the CNN hero of the year.

From that lofty and admirable high spot we are now, we Filipino are now reduced to this - inhumane, barbaric, monstrous killers of helpless men and women - killing, raping, putting bullets on all parts of the body of now 57 people.

They are wives, fathers and siblings of Filipinos, they are also our brothers and sisters. We must not stop. We must demand for justice. Let us save the Filipino".

The Maguindanao massacre, also known as the Ampatuan massacre (after the town where the mass graves were found), occurred on the morning of November 23, 2009, in the town of Ampatuan in Maguindanao province, on the island of Mindanao in the Philippines. The victims were about to file a certificate of candidacy for Esmael Mangudadatu, vice mayor of Buluan town. Mangudadatu was challenging Andal S. Ampatuan, Jr., son of the incumbent Maguindanao governor Datu Andal Ampatuan Sr., in the forthcoming Maguindanao gubernatorial election,[1] part of the national elections in 2010. Those killed included Mangudadatu's wife, his two sisters, lawyers, and aides.


The massacre occurred after about 100 Ampatuan gunmen allegedly abducted a convoy of aides and relatives of a rival politician, Esmael Mangudadatu, plus a group of journalists.

The victims were snatched as they were travelling in a six-vehicle convoy to nominate Mangudadatu as the opposition candidate for provincial governor in next year's elections.

They were shot at close range, some with their hands tied behind their backs, and dumped or buried in shallow graves on a remote farming road close to a town bearing the Ampatuan name.

Fifty-seven bodies have been recovered so far.

Ampatuan Jr. is the son of Maguindnao's governor, a Muslim clan chief of the same name who commands his own private army and until this week was a close ally of President Gloria Arroyo's ruling coalition.

Maguindanao is a part of the lawless Mindanao island, where Muslim clans rule vast areas backed by their own private armies, often out of the national government's control.

Ampatuan Sr. had been grooming his son, currently a local mayor, to take over as governor of Maguindanao.

The victims' relatives alleged the Ampatuans organised the murders so that Mangudadatu would not run for that post.

The killing was really horrifying and the deadliest attack to humanity.



It reminds me of the horror of the Holocaust. The Holocaust began in 1933 when Hitler came to power in Germany and ended in 1945 when the Nazis were defeated by the Allied powers. The term "Holocaust," originally from the Greek word "holokauston" which means "sacrifice by fire," refers to the Nazi's persecution and planned slaughter of the Jewish people. The Hebrew word "Shoah," which means "devastation, ruin, or waste," is also used for this genocide.



In San Francisco, there is a Holocaust Memorial which I visited in February 2009. The Holocaust ideals are embodied in the wall inscriptions.

Sunday, November 15, 2009

PROPERTY POINT: Salvage Zones Utilization



Client wants to know if it can utilize an area constituting a salvage zone.

Under Article 51 of the Presidential Decree No. 1067, otherwise known as “The Water Code of the Philippines”, Salvage Zone is defined as “the zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins, subject to the easement of public use in the interest of recreation, navigation, flotage, fishing and salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind”.

The Philippine Ports Authority has jurisdiction over all shorelines or salvage zones. It cannot, however, grant an exemption for the individual personal use of the shoreline. Based on our representation with the Department of Environment and Natural Resources (DENR), we learned that the available option is for client to file a Foreshore Land Application.
By definition, Foreshore land is “that part of the land immediately in front of the shore; that part which is between the high and the low water marks and alternately covered with water or left dry by the flux or reflux of the tide.” Thus, a foreshore could be the twenty (20) meters of salvage zone in agricultural areas.

Under the 1973 and 1987 Constitutions, an individual may lease not more than 500 hectares and a corporation may lease not more than 1000 hectares. The term of a foreshore lease is twenty-five (25) years renewable for another 25 years. Like any other public land applications, foreshore lease applications should be filed at the DENR-Community Environment and Natural Resources Office within whose jurisdiction the land applied for is located.

Section 13 of the DENR Administrative Order No. 99-34 provides the procedure for applying for the Foreshore Lease.

1. Filing of the application with the CENRO;
2. Preliminary Investigation and Appraisal;
3. Survey of the Land;
4. Recommendation to the official concerned for the approval of the appraisal and request for the authority to lease the land through bidding;
5. Approval of Appraisal and grant of Authority to Lease the land through bidding;
6. Payment of the publication expense if the appraise value of the land exceeds P240.00;
7. Publication of the Notice of right to lease the land;
8. Public auction and submission of report of bidding;
9. Order of Award;
10. Preparation of the Lease Contract;
11. Letter to the Applicant enclosing copy of the Lease contract for signature;
12. Letter forwarding the lease contract to official concerned for his approval and notarization;
13. Letter transmitting to applicant the approved Lease Contract.

Friday, October 30, 2009

CORPORATE CHATS: Surveillance Cameras in Workplace - An Intrusion of Privacy?

I was recently asked about the legality in the Philippines of putting video surveillance cameras and setting up some “bait” in order to deter and/or learn the culprits of on-going thefts in the workplace. His question actually is anchored on the existence of privacy laws in the Philippines and if the setting up of surveillance cameras would be violative of said privacy laws, if there be any? Also,if an employee who committed theft in the workplace as seen in the surveillance cameras, could be dismissed?


I replied, in part, as follows:


Zones of privacy are recognized and protected under Philippine laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling and prying into the privacy of another. Xxx. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law.

Moreover, the right of privacy is recognized and enshrined in several provisions of the Philippines Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights :
"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:ry
"Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2 . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources-- governments, journalists, employers, social scientists, etc”. In no uncertain terms, the right to privacy does not bar all incursions into individual privacy. Xxx. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good.

Within the zones of privacy, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. Xxx the right to privacy is a 'constitutional right and 'the right most valued by civilized men, xxx adherence to the Universal Declaration of Human Rights which mandates that 'no one shall be subjected to arbitrary interference with his privacy and 'everyone has the right to the protection of the law against such interference or attacks.


Based on the foregoing discussion, I believe that the intended installation of hidden video surveillance cameras to primarily “bait” its employees is an intrusive invasion of privacy of the employees and is in violation of Philippine privacy laws particularly Republic Act No. 4200, and otherwise known as “An Act To Prohibit And Penalize Wire Tapping And Other Related Violations Of The Privacy Of Communication, And For Other Purposes” (for brevity “Anti-Wire Tapping Law”).

Under the statute, however, there is a way to make the installation of video surveillance lawful and not in violation of the right to privacy of the employees.

The Anti – Wire Tapping Law makes it
"unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Sec. 3 hereof, shall not be covered by this prohibition.
Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding Sec. or who violates the provisions of the following Sec. or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof.
Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding Section of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation."


Thus, in accordance with the above-quoted provisions of the Anti-Wire Tapping Law, surveillance cameras can be set up and used for a variety of different security applications in the workplace, provided that the same is authorized by all the parties. “Parties” can include employees, officers, visitors, contractors and all persons who come in the building. The way to get the authorization of these “Parties” is through posting of “signs” on the wall and “notices” on conspicuous places. The fact that employees might have already known the existence of the surveillance cameras around is not enough. There should be a sign legible enough for ALL the Parties (not just employees) to know that surveillance cameras are actually in placed and is working. Lacking these required notices makes the recording a real “bait” or a “fishing expedition" and the same is inadmissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation as provided for in the Anti-Wire Tapping Law.

2.) If an employee is committing theft in the workplace, could he/she be dismissed?

Yes. The Philippine Labor Code authorizes an employer to terminate the services of an employee for loss of trust and confidence, provided that the loss of confidence arises from particular proven facts.

Article 282(c) of the Labor Code, provides that “employer may terminate an employment for “fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative.”

One jurisprudence provides that “A company has the right to dismiss its erring employees if only as a measure of self-protection against acts inimical to its interest”. In another decision of the Supreme Court, it states that “Loss of confidence is established as a valid ground for the dismissal of an employee. The law does not require proof beyond reasonable doubt of the employee’s misconduct to invoke such a justification. It is sufficient that there is some basis for the loss of trust or that the employer has reasonable grounds to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of the trust and confidence demanded of his position”.

Dismissal of an employee caught of committing theft (by means of a video surveillance) is a recognized right of the employer as a measure of self-protection against acts inimical to its interest. An employer cannot be compelled to continue in employment an employee guilty of acts inimical to its interest, justifying loss of confidence in him.

May I reiterate, however, that in view of the right to privacy of the employees again as sanctioned under the Bill of Rights, due process has to be observed in cases of termination. Due process in terminating employee on this ground (or any ground for that matter) demands that the employer should furnish the worker whose employment is sought to be terminated a written notice containing a statement of the cause[s] for termination and afford him ample opportunity to be heard and to defend himself with the assistance of a representative if he so desires. Specifically, the employer must furnish the worker with two written notices before termination of employment can be legally effected: [1] notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and [2] the subsequent notice which informs the employee of the employer's decision to dismiss him.

Thursday, October 15, 2009

PROPERTY POINT: CONSULTA



A certain Register of Deeds denied the registration of the Deed of Absolute Sale executed by a corporation sole on the ground that “Court Approval is necessary since the Vendor being a corporation sole pursuant to Section 113 of Batas Pambansa Blg. 68, the Corporation Code of the Philippines.”

Pursuant to Section 117 of Presidential Decree No. 1529, otherwise known as the Property Registration Decree, we elevate the matter to Land Registration Authority (LRA) by way of consulta.


BASIS OF CONSULTA:

Section 117 of the Property Registration Decree reads –

Section 117. Procedure. When the Register of Deeds is in doubt with regard to the proper step to be taken or memorandum to be made in pursuance of any deed, mortgage or other instrument presented to him for registration, or where any party in interest does not agree with the action taken by the Register of Deeds with reference to any such instrument, the question shall be submitted to the Commissioner of Land Registration by the Register of Deeds, or by the party in interest thru the Register of Deeds. Where the instrument is denied registration, the Register of Deeds shall notify the interested party in writing, setting forth the defects of the instrument or legal grounds relied upon, and advising him that if he is not agreeable to such ruling, he may, without withdrawing the documents from the Registry, elevate the matter by consulta within five days from receipt of notice of the denial of registration to the Commissioner of Land Registration.

The Register of Deeds shall make a memorandum of the pending consulta on the certificate of title which shall be cancelled motu proprio by the Register of Deeds after final resolution or decision thereof, or before resolution, if withdrawn by petitioner.

The Commissioner of Land Registration, considering the consulta and the records certified to him after notice to the parties and hearing, shall enter an order prescribing the step to be taken or memorandum to be made. His resolution or ruling in consultas shall be conclusive and binding upon all Registers of Deeds, provided, that the party in interest who disagrees with the final resolution, ruling or order of the Commissioner relative to consultas may appeal to the Court of Appeals within the period and in manner provided in Republic Act No. 5434.

STATEMENT OF MATERIAL DATES:

Include a statement that the corporation sole has until a particular date (it should be within five days)to elevate the matter by consulta to the Land Registration Authority.


STATEMENT OF FACTS:


ISSUE:


Whether or not the Deed of Absolute Sale is registrable, despite the absence of a Court Approval allowing the corporation sole, to sell the Property?

DISCUSSION:

1. Section 113 of the Corporation Code of the Philippines was the basis for the denial of registration by the Register of Deeds. Section 113 is hereto quoted in full, as follows:

“Acquisition and alienation of property. - Any corporation sole may purchase and hold real estate and personal property for its church, charitable, benevolent or educational purposes, and may receive bequests or gifts for such purposes. Such corporation may sell or mortgage real property held by it by obtaining an order for that purpose from the Court of First Instance of the province where the property is situated upon proof made to the satisfaction of the court that notice of the application for leave to sell or mortgage has been given by publication or otherwise in such manner and for such time as said court may have directed, and that it is to the interest of the corporation that leave to sell or mortgage should be granted. The application for leave to sell or mortgage must be made by petition, duly verified, by the chief archbishop, bishop, priest, minister, rabbi or presiding elder acting as corporation sole, and may be opposed by any member of the religious denomination, sect or church represented by the corporation sole: Provided, That in cases where the rules, regulations and discipline of the religious denomination, sect or church, religious society or order concerned represented by such corporation sole regulate the method of acquiring, holding, selling and mortgaging real estate and personal property, such rules, regulations and discipline shall control, and the intervention of the courts shall not be necessary. (portions in bold are added for emphasis)

2. Basing only on the first paragraph of the above – quoted Section 113 of the Corporation Code, the Register of Deeds is correct in his denial. However, he erroneously missed the proviso on the same Section 113 that states “Provided, That in cases where the rules, regulations and discipline of the religious denomination, sect or church, religious society or order concerned represented by such corporation sole regulate the method of acquiring, holding, selling and mortgaging real estate and personal property, such rules, regulations and discipline shall control, and the intervention of the courts shall not be necessary.”

3. A corporation sole was organized and registered with the Securities and Exchange Commission, under the following provision of the Corporation Code of the Philippines (“Corporation Code”):

“SECTION 110. Corporation Sole. — For the purpose of administering and managing, as trustee, the affairs, property and temporalities of any religious denomination, sect or church, a corporation sole may be formed by the chief archbishop, bishop, priest, minister, rabbi or other presiding elder of such religious denomination, sect or church.”

6. For the purpose of this consulta, it is instructive to note that corporation sole described in Section 113 of the Corporation Code, may purchase, hold and dispose of real estate and personal property for its church, charitable, benevolent or educational purposes. Moreover, corporation sole has rules, regulations and discipline which regulates the method of acquiring, holding, selling and mortgaging real estate and personal property, such that the existence of said rules, regulations and discipline, the intervention of the courts shall not be necessary as said rules, regulations and discipline would control.

10. Since corporation sole rules, regulations and discipline regulate the method of selling real estate property, such rules, regulations and discipline shall control, and the intervention of the courts shall not be necessary. Hence, the Deed of Absolute Sale is registrable, despite the absence of a Court Approval allowing LDS, being a corporation sole, to sell the Property.


PRAYER:

We therefore request that:

1. The Land Registration Authority directs the Register of Deeds to register the Deed of Absolute Sale between the parties--

2. The Register of Deeds be further directed to cause the cancellation of Transfer Certificate of Title No. and the issuance of a new title covering the ---square meters subject of the sale in favor of the buyer.

Based on LRA CIRCULAR No. 04-2005 otherwise known as the Supplement to Rules and Procedure on Consulta, it is directed that all Consulta shall be filed directly with the Register of Deeds concerned who shall endorse the same to the LRA after payment of the required fees. No consulta shall be entertained by LRA without the required endorsement from the Register of Deeds.

Tuesday, September 15, 2009

FAMILY FIX: Parental Authority and General Contracting Principles



A foreign lawyer requested me to review a contract that will be used by a foreign corporation to engage local volunteers to assist with audiovisual productions in the Philippines. The last page of the disclosure statement refers to the Parental consent where the Volunteer is a minor and thus he wants me to review the consent language as it applies in the context of the agreement and if it complies with local law. He further requested that if it does not comply with local law, that I provide him with the appropriate language.

I replied as follows:

1. Under Articles 211 -216 of the Family Code of the Philippines, both spouses exercise parental authority over their children and in case of disagreement the father’s decision shall prevail unless there is a judicial rule to the contrary. In case of absence or death of either parent, the surviving parent shall continue exercising parental authority. In case of separation of parents, parental authority shall be exercised by the parent designated by the court. In default of parents or judicially appointed guardian, the following persons shall exercise substitute parental authority, namely: (1) the surviving grandparents; (2) the oldest brother or sister over 21 years old, unless unfit or disqualified; and (3) the child’s actual custodian unless unfit or disqualified.

Under Article 220 of the Family Code, the parents and those exercising parental authority shall have with respect to their minor (unemancipated children), the right to represent them in all matters affecting their interests. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their minor children.

In this regard, it would be well to ensure that the person who gave the consent to the minor is the right person with the parental authority over the child.


2. Although the requested review is limited only to the additional parental consent language, I hope that you won’t mind this gentle reminder pertaining to the general contracting principles:

a). Notarization

Each counterpart execution of the Agreement, i.e., by the foreign corporation (FC) based abroad and by Volunteer, should be notarized. More, the notarization pertaining to the FC should be authenticated by a Philippine consul at the nearest Philippine consulate or embassy as we assume that the FC will be executing the Agreement abroad.

As you may note, the procedure of requiring each agreement to be notarized and then authenticated by the Philippine consulate is certainly cumbersome for the FC. To avoid this, I suggest to have FC execute a Special Power of Attorney in the US and authenticated by the Philippine Consulate, which would grant authority to a Filipino citizen to execute Agreements on behalf of FC.

b). Re Governing Law
A choice of governing law provision is generally recognized and given effect in the Philippines, provided that the contract has a reasonable connection with the law chosen and provided further that their provisions are not against prohibitive laws of the Philippines, public order, public policy or good customs.

To determine whether a contract has a reasonable connection with the law chosen, the courts will look into various factors, including: place of contracting, place of negotiation, place of performance, the subject matter of the contract or domicile, residence, nationality, place of incorporation and place of business of the parties. In case Philippine courts determine that no sufficient connection exists between the contract and the choice of law, it may refuse to enforce the choice of law provision and instead apply Philippine law to interpret the terms of the contract.

Notwithstanding that Philippine courts may uphold the choice of the laws provisions in a contract, please note that Philippine law will still govern in instances where:
• the foreign law is procedural in nature such as service of process, joinder of actions, period and requisites for appeal, and other procedural matters;
• the foreign law is contrary to a sound and established public policy of the forum;
• the foreign law is penal in nature;
• the foreign law is contrary to good morals;
• the foreign law is fiscal or administrative in nature; and
• the issues or dispute relates to immovable property in the forum.

In such cases, the Philippine courts will likely apply Philippine law to settle the case or dispute arising between or among the parties to a contract or agreement, even if it meant virtually ignoring an express stipulation applying a foreign law as the law of choice of the parties.

Based on the above discussion, we believe that Clause 12 of the Agreement providing for foreign law as the governing law is generally valid and binding, given that there is a reasonable connection between the foreign law and the Agreement. As you are aware, however, this does not preclude an argument by the Volunteer that Philippine law should be applicable to the Agreement, on the basis that one of the exceptions above applies.

c). Re Jurisdiction
Under Philippine law, parties to a contract may stipulate on the court that will have jurisdiction over any and all contractual disputes. These stipulations on jurisdiction are, as a general rule, recognized and respected under Philippine law. Please note, however, that in certain occasions, such stipulations on jurisdiction may be set aside, and the parties will be compelled to litigate before a court other than the one specified in the jurisdiction stipulation.

One such occasion wherein the jurisdiction stipulation will be disregarded is if the appointed court finds that it is not the convenient forum to settle the dispute. Whether a suit should be entertained or dismissed on the basis of the principle of forum non conveniens will depend largely upon the facts of the particular case and will be addressed to the sound discretion of the court. The appointed court will usually assume jurisdiction over the dispute in accordance with the parties’ jurisdiction stipulation if the following requisites are met: (1) the court is one to which the parties may conveniently resort to; (2) the court is in a position to make an intelligent decision as to the law and the facts; and (3) the court has or is likely to have power to enforce its decision.

Corollary to the first situation, another occasion where the jurisdiction stipulation may be set aside is if a party brings a contractual dispute before a Philippine court, and the latter finds that, in view of several relevant circumstances, there are multiple and substantive contacts between Philippine law and Philippine courts, on the one hand, and the relationship between the parties, upon the other (e.g., the contract was not only executed in the Philippines, it was also performed here, at least partially; one of the parties is a Philippine citizen and resident, etc.). In such a situation, the Philippine courts may decide to assume jurisdiction over the contractual dispute on the ground that it is a proper forum for the resolution of the subject dispute between the parties. This possible action of a Philippine court will accord with the settled rule in Philippine jurisprudence that jurisdiction clauses in contracts between the parties cannot be given absolute effect so as to oust Philippine agencies and courts of the jurisdiction vested upon them by Philippine law.

It should be noted that the Philippine Supreme Court has ruled that a stipulation that limits the venue of an action exclusively to a foreign court would be null and void for being contrary to public policy. “Exclusive jurisdiction of foreign courts over causes of action arising in the Philippines may be the subject of a treaty, international convention, or a statute permitting and implementing the same. Definitely, however, such jurisdiction and venue designation cannot and should not be conferred on a foreign court through a contractual stipulation even if restrictive in nature.” [Molina vs. De la Riva, 6 Phil. 12 (1906)]

Based on the above discussion, we believe that Clause 12 of the Agreement providing for the exclusive jurisdiction of Utah courts is generally valid and binding. However, Volunteer may argue that Philippine courts should have jurisdiction over a dispute involving the Agreement, on the ground that the Utah courts are not a convenient forum to settle the dispute, given that it would be "inconvenient" for Volunteer to institute suit therein.

Saturday, August 22, 2009

FAMILY FIX: Being a Judge in a Family Court - Judge Ma. Elisa Sempio - Diy (RTC 225 QC)



This is the talk given by Judge Maria Elisa Sempio Diy of Branch 225, Regional Trial Court of Quezon City during the first anniversary conference of the J. Reuben Clark Law Society - Philippines Chapter last August 22, 2009 in Makati City.


Being a Judge in a Family Court
Judge Maria Elisa Sempio Diy
Branch 225, Regional Trial Court
Quezon City


Good morning. Before I begin my short lecture on the practical side of being a family court judge, let me just say that it is an honor to address a group composed of legal minds that give value to both the supremacy of law and one’s faith in a Supreme Being as their ultimate guide.

My objective with this survey of practical pointers on the procedure in some common family cases is to equip all of us to assist anyone who might be facing an issue or predicament in the family and to allow him/her to have a happy family life or to move on in anticipation of a new family.

As an instrument of the State in portraying the role of parens patriae or the guardian of the rights of the people, it will be a pleasure to any member of the bench to walk you through the following practical pointers:


ADOPTION

The Rule on Adoption (A.M. No. 02-6-02-SC) has the following objectives:

(a) The best interests of the child shall be the paramount consideration in all matters relating to his care, custody and adoption, in accordance with Philippine laws, the United Nations (UN) Convention on the Rights of the Child, UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption.

(b) The State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling, neglected, orphaned or abandoned.
R.A. No. 9523, enacted on March 12, 2009, provides for a simpler procedure to declare a “child legally available for adoption” as a prerequisite for adoption proceedings. The procedure is now administrative in nature. A petition in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths, shall be filed with the regional office of the DSWD where the child was found and abandoned. The Regional Director shall examine the petition and its supporting documents, shall authorize posting of the notice in a conspicuous place for 5 consecutive days where the child was found, and shall render a recommendation not later than five (5) working days after completion of the posting. Upon finding merit in the petition, the Secretary shall issue the certification applied for within seven (7) working days from receipt of the recommendation. And said certification shall, by itself, be the sole basis for the immediate issuance by the local civil registrar of a foundling certificate. The decision of the Secretary shall be appealable to the Court of Appeals within five (5) days from receipt of the decision by petitioner, otherwise, the same shall be final and executory.

Procedural Pointers:

1. Who may adopt
(1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent;

(2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity;

(ii) one who seeks to adopt the legitimate child of his Filipino spouse;

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.


Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or

(ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

2. Venue
SEC. 6. Venue. – The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.

3. The Hearing
SEC. 14. Hearing. – Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing.

[Note: There shall be no delegation of reception of evidence to the Branch Clerk of Court.]

The court shall verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.

4. Confidential Nature of Proceedings and Records
SEC. 18. Confidential Nature of Proceedings and Records. – All hearings in adoption cases, after compliance with the jurisdictional requirements, shall be confidential and shall not be open to the public. All records, books and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.
[Note: Chambers hearings are common in this regard.]

NULLITY OF MARRIAGE
Statistically, the docket of family courts is overwhelmed with cases under Article 36 of the Family Code. The policy of all family courts throughout the country is to initially exert efforts toward the preservation of marriage. Hence, as a matter of legal practice, lawyers always try to find out the particular judicial temperament of family court judges on the matter of nullity of marriage. Realistically, a favorable decision in the lower court is a good start toward the final invalidation of the marriage. And a good authoritative decision will have a greater chance of affirmance before the appellate court.
Procedural Pointers: (A.M. No. 02-11-10-SC)

1. The Petition for declaration of absolute nullity of void marriages

Sec. 2. Petition for declaration of absolute nullity of void marriages.
(a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife.
(b) Where to file. - The petition shall be filed in the Family Court.
(c) Imprecriptibility of action or defense. - An action or defense for the declaration of absolute nullity of void marriage shall not prescribe.
(d) What to allege. - A petition under Article 36 of Family Code shall specially allege the complete facts showing the either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.
(Emphasis ours)
2. Venue
Sec. 4. Venue. - The Petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing or, in the case of non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.

3. Contents and form of petition
Sec. 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action.
(2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.
If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action.
(3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact.
If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul, or vice-consul or consular agent in said country.
(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.

Failure to comply with any of the preceding requirements may be ground for immediate dismissal of the petition.
(Emphasis ours)

4. Motion to dismiss
Sec. 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.

5. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage
Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage. -- (a) The court shall issue the Decree after:
(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;
(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and
(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.
(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.
Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Trend of jurisprudence:

Republic v. C.A. and Molina (G.R. No. 108763, Feb. 19, 1997)

1. Stringent requirements. Burden of proof belongs to plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.

2. Root cause of the psychological incapacity must be (a) medically or clinically defined, (b) alleged in the complaint, (c) sufficiently proven by experts, and (d) clearly explained in the decision.

3. Juridical antecedence – Existing at the time of celebration of the marriage.

4. Incurability – Must be shown to be medically or clinically permanent; may be absolute or even relative to the other spouse, not necessarily absolutely against everyone of the same sex.

5. Gravity -- Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted a root causes; must be downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will; there is a natal or supervening disabling factor in the person, an adverse element in the personality structure.

6. Marital obligations embraced by Articles 68 to 71 of the Family Code as regards husband and wife, and Articles 220, 221 and 225 in regard to parents and children.

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church, while not controlling or decisive, is given great respect.

8. The prosecuting attorney or fiscal and the Solicitor General shall appear as counsel for the state.


Marcos v. Marcos (G.R. No. 136490. October 19, 2000)

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos v. Court of Appeals: "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence, and (c) incurability." The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.


Te v. Te (G.R. No. 161793, February 13, 2009)

Predictably, however, in resolving subsequent cases, the Court has applied the aforesaid standards, without too much regard for the law’s clear intention that each case is to be treated differently, as “courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.”

In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the OSG’s exaggeration of Article 36 as the “most liberal divorce procedure in the world.” The unintended consequences of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled marriages on account of the personality disorders of the said individuals.


Ting v. Ting (G.R. No. 166562 : March 31, 2009)

In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te, we declared that, in hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. We said that instead of serving as a guideline, Molina unintentionally became a straightjacket, forcing all cases involving psychological incapacity to fit into and be bound by it, which is not only contrary to the intention of the law but unrealistic as well because, with respect to psychological incapacity, no case can be considered as on all fours with another.

By the very nature of cases involving the application of Article 36, it is logical and understandable to give weight to the expert opinions furnished by psychologists regarding the psychological temperament of parties in order to determine the root cause, juridical antecedence, gravity and incurability of the psychological incapacity. However, such opinions, while highly advisable, are not conditions sine qua non in granting petitions for declaration of nullity of marriage. At best, courts must treat such opinions as decisive but not indispensable evidence in determining the merits of a given case. In fact, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical or psychological examination of the person concerned need not be resorted to. The trial court, as in any other given case presented before it, must always base its decision not solely on the expert opinions furnished by the parties but also on the totality of evidence adduced in the course of the proceedings.

It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own attendant facts. Courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.

Far from abandoning Molina, we simply suggested the relaxation of the stringent requirements set forth therein, cognizant of the explanation given by the Committee on the Revision of the Rules on the rationale of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC), viz.:

To require the petitioner to allege in the petition the particular root cause of the psychological incapacity and to attach thereto the verified written report of an accredited psychologist or psychiatrist have proved to be too expensive for the parties. They adversely affect access to justice o poor litigants. It is also a fact that there are provinces where these experts are not available. Thus, the Committee deemed it necessary to relax this stringent requirement enunciated in the Molina Case. The need for the examination of a party or parties by a psychiatrist or clinical psychologist and the presentation of psychiatric experts shall now be determined by the court during the pre-trial conference.

(Emphasis ours)

But where, as in this case, the parties had the full opportunity to present professional and expert opinions of psychiatrists tracing the root cause, gravity and incurability of a party’s alleged psychological incapacity, then such expert opinion should be presented and, accordingly, be weighed by the court in deciding whether to grant a petition for nullity of marriage.


JUDICIAL DECLARATION OF PRESUMPTIVE DEATH

Applicable provisions:

Article 390, Civil Code - After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)
So as a general rule, no judicial declaration of presumptive death is required because such presumption arises from the law (In re Szatraw, 81 Phil. 461).


Exception: Article 41, Family Code

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

(Emphasis ours)


Judicial declaration of presumptive death is mandatorily required by law to be obtained by the present spouse only for the purpose of capacitating the present spouse to remarry. The judicial proceeding is summary in nature in accordance with Article 253 of the Family Code. For purposes of remarriage, the period of absence to be able to presume an absentee dead has been shortened to a normal period of four consecutive (4) years and two (2) consecutive years, if the disappearance occurred under circumstances described in Article 391 of the Civil Code where the danger of death is high. Such judicial declaration of presumptive death is the best evidence of the “well-founded belief” on the part of the present spouse that the absent spouse is dead. It immunizes the present spouse from being charged with bigamy, adultery or concubinage.

If the absent spouse reappears, such spouse can easily terminate the subsequent marriage by executing a sworn statement or affidavit of the fact and circumstance of such reappearance and recording the same with due notice to the spouses of the subsequent marriage. The subsequent marriage is automatically terminated by the recording in the civil registry of the residence of the parties to the subsequent marriage.

(Sta. Maria, Persons and Family Relations, 2004 ed., pp. 257-258)

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.

Characteristics of Summary Proceedings in the Family Code:

1. The petition shall be verified, to assure its truthfulness.
2. Notice of the filing of the petition should always be sent to the respondent at his or her last known address, as part of due process.
3. No periods are set, and it is up to the judge to determine the period within which the respondent should answer the petition and the hearing thereof, which should be very short, considering that the proceedings are summary.
4. There is a preliminary conference wherein lawyers are excluded, since in some cases, they are only obstructions to a compromise between the parties.
5. The appearance of the trial fiscal of the court is not required, since he might just be absent or come unprepared.
6. The preliminary conference should be conducted personally by the judge in the nature of an inquisitional hearing.
7. The proceeding can be decided on the basis of affidavits or other documentary evidence because of its summary nature, and oral testimonies of witnesses will be required only when needed and at the discretion of the court.
8. The case shall be decided in the most expeditious manner and without regard to technical rules.
9. The judgment of the court shall be immediately final and executory.

(Minutes of Code Committee meeting, April 9, 1986)


RECOGNITION OF A FOREIGN DIVORCE

Applicable provisions:
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), 3637 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. (As amended by Executive Order 227)

Sec. 48. Effect of foreign judgments or final orders.

The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.


FAMILY MEDIATION

Family law case mediation is a form of alternative dispute resolution in a private forum before a case is filed in court or a court-annexed one whereby an impartial person, a professional, or a judge in a two-court system helps parties define issues and have a plan to deal with them. A family case mediator sits down with people to discuss options and develop proposals to resolve a dispute. The mediator does not take sides. Every party attends the process and they all make the decision. Mediation sessions are confidential.

Among the matters referred for family mediation are custody of minor children and visitation or access; support as well as matters relating to properties of the parties. The law, however, does not allow a compromise on status, future support, ground for legal separation, legitime, jurisdiction, domestic violence and other crimes.


Thank you for your kind attention and good day.



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