Point Of Law

Private Practice is Not Easy

2016-01-13T23:07:00.001-08:00

Yes. I have thought about it.

Leaving private practice.

Abandoning variety for job security.

Private practice is not easy.

You perform numerous roles.

Litigator. CEO. CFO. Budget Officer. Administrative Officer. Head collecting agent.

Private practice is hard when the only money left in your bank account is the minimum balance and you still have to pay your employees.

Private practice is hard when you are on your own and there are numerous deadlines but your brain is one pile of mush.

Private practice is hard when you are exhausted from all the consultation and continuous hearings.

Private practice is hard.

And I have thought of leaving it.

But not today.

:)

Pagpapawalang bisa ng kasal (Petition for Declaration of Marriage) Annulment sa Layman

2016-01-02T20:34:00.001-08:00

REGARDING THE PETITION FOR DECLARATION OF NULLITY OF MARRIAGE UNDER ARTICLE 36 OF THE FAMILY CODE PART II (commonly tinatawag na annulment dahil sa psychological incapacity):

Kadalasan tinatanong ako kung may annulment ba raw ng tatlong buwan lang.

My answer is always an emphatic NO!

May proseso ang pagpapawalang bisa ng kasal under Article 36.

Sa opisina ang una kong ginagawa ay ang tinatawag kong INITIAL INTERVIEW

STEP 1 INITIAL INTERVIEW: Tinatanong ko ang kliyente kung ano ang sitwasyon ng kanilang pag aasawa. Dito ko tinitingnan kung baka may ibang grounds pa para mapawalang bisa ang kanilang kasal. Minsan kase nakakapagpakasal kahit di sakto ang edad or kasado na pala sa ibang tao ang asawa bago pa nagpakasal sa client. Dito ko rin inaalam kung may psychological incapacity ba talaga. Kung malala ba talaga ito. Kung hindi na gagaling. Kung nakikinita na ba ito bago pa sila mag asawa at lumalala lang ng sila ay nag asawa na.

Ang psychological incapacity kase ay di nangangahulugang sira ulo ang asawa mo. Oo sira ulo siguro sa aspetong iresponsable, biolente, nangangaliwa or walang pakialam sa buhay mag asawa pero hindi sa aspetong kung sa bisaya pa "Nagasipa sipa na ug lata."

STEP 2 PREPARATION OF THE PETITION.Dito dinadala na ng kliyente ang mga testigo nya, marriage contract na NSO authenticated, birth certificate ng mga anak nila (Authenticated din.), titulo or proof of ownership ng mga ari arian na paghahatian sa opisina.

Kung nasa ibang bansa ang magfafile ng petition, ginagawa ang interview through SKYPE (Yep kung minsan 2am magigising ka dito though kadalasan ang client ang gising ng di sakto sa oras.) Sa mga kliyenteng nasa labas ng bansa, ang natapos na petition ay pinapadala sa kanila through courier at sila ang nagpapaautheticate sa embahada/ consulate ng Pilipinas na kung saan sila nagtratrabaho. Nagvavary ang cost nito sa kung saang bansa nangagagaling ang client. Kapag nauthenticate na (Commonly known as Red Ribbon which akala ko dati ay cakes lang hehehe) binabalik sa Pilipinas para ilagay ang mga attachments. Minsan nadedelay dahil ang testigo ay matagal makunan ng judicial affidavit. Mas mabalis pa bumalik ang petition kaysa sa makunan ng testimony ang testigo na nasa Pilipinas lang.

STEP 3. Kapag tapos na ang petition. Finafile ito sa korte. Kung walang ari arian nasa 5,000.00 lang ang filing fee pero kapag may ari arian na paghahatian tataas ang filing fee dahil ibabase ito sa value ng mga properties. I always suggest na ideclare ang mga properties dahil may kakilala akong nanullify na ang kasal nila pero hanggang ngayon nag aaway dahil nagpapatigasan sila kung sino ang may ari ng bahay dahil hindi ito na include sa proceedings.

Kapag nafile na sa korte maaring madismiss ang petition di compliant ng efficient use of paper rule (Yep may ganyan.) or dinidismiss lang just for fun (Joke lang.) which happens dahil may kaso ako na nag Motion for Reconsideration pa kami at nagrant naman sa awa ng Dyos.

OR Patuloy ang kaso.

Kapag ganito may hihintayin kang dalawang bagay:

1. Dispensation ng SOLGEN na ang fiscal/prosecutor na sa kung saan finile ang kaso.

2. Resulta ng Summons.

STEP 3 SUMMONS

Iseserve ang petition sa asawa ng nagfile. Usually pagsisikapan na matanggap yung summons dahil kailangan nyang magsubmit ng ANSWER . Paano ngayon kung palaging wala sa bansa dahil seaman or nagtratrabaho sa cruise ship? Kadalasan siniserve ito sa last known adress at kung wala pa rin nag aalternative service. Pinapublish ang summons.

Pwedeng sumagot o hindi ang kabilang partido. Ang pinakaimportante ay matanggap ang mga dokumento na galing sa korte ng asawa mo or malaman nya na may dokumentong dumating para sa kanya.

STEP 4 COLLUSION REPORT

Inorderan ng judge ang fiscal na magconduct ng COLLUSION INVESTIGATION. Dito pinapatawag ang dalawang partido para malaman kung kunwari kunwari lang ba ng mga pinagsasabi sa petition. Minsan dumadating ang mag asawa. Kadalasan ang nagfile lang ng petition.

As long as mafifind ng fiscal na walang collusion maari ng bumalik sa korte ang kaso.

STEP 4 SOCIAL WORKER REPORT

Maaring ipapagutos ng korte magkaroon ng case study ang isang social worker sa mag asawas.Kung minsan ang case study ay ginagawa na after pre trial. (Pag usapan muna natin ang pre-con at pre-trial.

STEP 5 PRELIMINARY CONFERENCE or PRE-CON

Dito iraraise ang fact na nacomply na ang mga jurisdictiona requirements ng kaso (publication for example kung kailangan or natanggap na ang summons at tapos na ang collusion report)

Mamarkahan din ang mga ebidensya.

STEP 5 PRE TRIAL

Iaapprove ang mga napagusapan sa pre-con or itatama ang mga mali sa pre-con.

STEP 6 TRIAL PROPER. PETITIONER

Pupunta na sa witness stand ang mga testigo ng nagfile ng petition (a.ka. petitioner). Kadalasan kaibigan, magulang, kapatid, anak at psychiatrist. Though not all the time kailangan ng psychiatrist.

STEP 7 TRIAL PROPER RESPONDENT

Pupunta na sa witness stand ang mga testigo ng kabilang partido kung nilalabanan ang petition.

Kadalasan di na sumisipot ang asawa dahil wala ng pakialam, ayaw na mag aksaya ng oras or alam nya namang totoo lahat as long as walang COLLUSION.

STEP 8 DECISION

Magdedesisyon ang korte na igrant o di igrant ang petition.

Pag granted malaya ka na. Kapag hindi pwedeng iapela.

STEP 9 LALABAS ANG ORDER

Kapag lumabas ang order kailangan na itong isubmit sa LCR para ma annotate ang marriage contract mo na wala na itong bisa at lalabas sa CENOMAR na hindi na kayo mag asawa.

YUP up to here na lang. Kung mabilis ang proseso umaabot ito ng isang taon ngunit kadalasan two years lalo na kung may mga aberyang di hawak ng kliyente or ng abogado. SO THERE WALA PONG INSTANT ANNULMENT.

Baka interesado rin po kayo sa explanation bakit walang instant annulment na sa COTABATO

Bail 101

2016-01-02T20:19:00.002-08:00

A few days back, I realized that some prisoners in jail are not even aware that they have the option to post bail frown emoticon

Thus I am posting it here:

Kung may kaso po ang mga kakilala nyo at nakulong ang unang una nyo pong hingin sa korte ay ang resolution at information. Makikita po doon kung pwede bang pyansahan (Bail) ang kaso. Dahil kung nakapagpyansa ang tao pwede po syang makalaya.

This may seem so simple to a lawyer pero sa ibang tao pala ang hirap nito.

Legally Blonde Or Wishing I Could Be Fabulous Like Elle

2015-12-23T06:25:00.000-08:00

This coming 2016 I want to be like my former self.

This is my point of reference. My picture taken approximately two days ago by a friend.

HOPE I will be healthier. ;)

Delay

2015-12-14T06:46:00.000-08:00

I went to attend the preliminary conference of a case that I am handling today.

Aside from the fact that the schedule for the pretrial of the case that I am handling is scheduled on October next year another incident in court almost made me cry.

I heard sobs from the gallery that I was forced to glance at my back. I saw a female inmate and an older woman sobbing.

I knew the story of the inmate. She already stayed in jail for three years. Today was also the preliminary hearing of her case. She knew that her pre trial will be on September 2016.

Imagine the agony of waiting.

And this is what we call justice.

Sigh. :(

SOX BLOGGERS

2015-12-11T22:25:00.000-08:00

I'm Going. :)

FEAR

2015-12-10T06:04:00.004-08:00

Yesterday, I felt fear.

I was working as a lawyer and my train of though was derailed.

My speech was not coherent. My ideas not succinct. The order of my questions were inconsistent.

I had to write my ideas down.

I was afraid.

You see. I always pride myself as a good speaker. Not just a good speaker but and exceptional extemporaneous speaker. In college I was a kick ass rebuttal speaker. I can detect and pinpoint from a distance the frays of a neatly packaged argument.

I could nitpick or bombard any argument.

I can think on my feet with a speed of light.

Oh hell! I just think I'm verbally gifted.

Thus the fear.

I felt that my brain was not cooperating. 

I knew what i wanted to say.

I knew what was wrong with the arguments.

I could not produce a well thought out argument.

And I realize why.

I am rusty.

I should talk more.

I should participate more.

Instead of sulking in my more than a decade of pity party I should celebrate and go out. ;)

Here is my heart. Crush it.

2015-11-27T05:54:00.000-08:00

Today.

I assisted the family of my client. There was an allegation that a minor was raped by her blood relatives.

The cynic in me would rather believe that the incident is just concocted by the imaginative minds of children.

I assisted with caution. Wary of the veracity of the accusation and worried of the danger that we are getting into.

We were able to get the child/victim.

My heart was crushed when I heard the victim say, "Ka salamat kay gikuha gyud ko nimo." Translation: "Elder sibling, I am grateful that you took me from this place."

So tonight, I am going to sleep less jaded and with a crushed but softened heart.

Class Objective Day 2

2015-08-31T18:45:00.000-07:00

1. Familiarize with the basic structure of the Constitution.

2.Familiarize with the structure of Political Law Bar Exam questions.

FILING OF CRIMINAL COMPLAINT CHECK LIST

2014-12-18T23:30:00.001-08:00

1. Is the complainant the proper party?
2. Are the necessary documents, objects or witnesses available?
3. Where is the jurisdiction of the crime?
4. Are all the elements alleged in the complaint?
5. Is there no lapse in the prescriptive period of the crime?
6. Are the jurisdictional requirements such as barangay conciliation complied with?
7. Is the cover letter complete?
8. Is the investigation data sheet completely filled up, signed by the complainant and subscribed by the fiscal?
9. Are the copies of the complaint and its annexes complete? (7 copies per case. B.P. 22 7 copies per check.)
10. Are the necessary certification complied with?

RPC 246 Parricide

2014-11-23T00:17:00.000-08:00

CRIME: PARRICIDE

ELEMENTS:

(1) a person is killed;
(2) the deceased is killed by the accused;
(3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of accused.”

PENALTY:

reclusion perpetua to death

PERIOD TO PREPARE COMPLAINT WHEN ARRESTED WITHOUT A WARRANT:

36 hours

Relevant Cases:

“Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of accused.” People v.Sales October 3, 2011 G.R. No. 177218

"The imposition of parental discipline on children of tender years must always be with the view of correcting their erroneous behavior. A parent or guardian must exercise restraint and caution in administering the proper punishment. They must not exceed the parameters of their parental duty to discipline their minor children. It is incumbent upon them to remain rational and refrain from being motivated by anger in enforcing the intended punishment. A deviation will undoubtedly result in sadism." People v. Sales

"Parricide is differentiated from murder and homicide by the relationship between the killer and his or her victim. Even without the attendant circumstances qualifying homicide to murder, the law punishes those found guilty of parricide with reclusion perpetua to death, prior to the enactment of Republic Act No. (RA) 9346 (An Act Prohibiting the Imposition of the Death Penalty in the Philippines). The commission of parricide is punished more severely than homicide since human beings are expected to love and support those who are closest to them. The extreme response of killing someone of one’s own flesh and blood is indeed unnatural and tragic."

"Parricide is the most terrible and unnatural of crimes." People v. Tibon. G.R. No. 188320 June 29, 2010

"It is said that, in Romulus’ time, there was no penalty for parricide because it was considered a crime too evil ever to be committed. While parricide in those days referred to the murder of one’s own parent or ascendant, the killing of one’s own offspring, which the term’s modern meaning now includes, is equally horrendous and deserving of the stiffest penalty." People v. Tibon. G.R. No. 188320 June 29, 2010

"The relationship between the offender and the victim is a key element in the crime of parricide, which punishes any person “who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse.” The relationship between the offender and the victim distinguishes the crime of parricide from murder or homicide.However, the issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not determinative of the guilt or innocence of the accused.

The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The issue in parricide is whether the accused killed the victim. In this case, since petitioner was charged with frustrated parricide, the issue is whether he performed all the acts of execution which would have killed respondent as a consequence but which, nevertheless, did not produce it by reason of causes independent of petitioner’s will. At the time of the commission of the alleged crime, petitioner and respondent were married. The subsequent dissolution of their marriage, in case the petition in Civil Case No. 04-7392 is granted, will have no effect on the alleged crime that was committed at the time of the subsistence of the marriage. In short, even if the marriage between petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was still married to respondent." Pimentel v. People G.R. No. 172060 September 13, 2010

Five Questions You Need To Ask When You Are Buying Real Estate Property

2014-10-05T05:07:00.001-07:00

In the course of one's excitement in buying a house or a piece of land, buyers tend to easily part with their hardearned money. They tend to forget asking a few basic questions that spare buyers the pitty party that comes with buying a dud. Here are a few questions to ask when you are buying real estate property:

1. Do you own this property?

Yep there are people who buy a piece of real estate without even asking if the seller is the owner. Some people sell properties that are not even theirs. Married individuals sell property without the consent of their spouses. Siblings sell inherited property without the consent of their other siblings.

In the Philippines, a person selling real estate property who is not an owner must have a special power of attorney from the real owner, generally, a spouse not in the forefront of negotiating the sale of their property must give his/her marital consent and siblings must execute an extrajudicial settlement with deed of sale if the properties of their deceased parents are not yet partitioned among them heirs.

2. What is your proof of ownership?

A deed of sale, a will, a deed of donation, a waiver of rights or a title, all these are proof of ownership.

The easiest document to peruse is a title. Once the title is in the name of the seller without marks of encumbrance at the back, it is one clear proof of ownership.

The rest needs additional proof, a deed of sale for example will need a photocopy of the title showing that the person who is currently selling the lot to you was also the buyer from the person whose name appears in the title.

It is also necessary that documents showing transfer of rights over a piece of real estate is notarized.

3. I am getting a certified true copy of this title, can you wait for a while while I verify?

The answer of a bonafide seller to this question must be a yes.

Any self-respecting seller would allow the buyer to exercise due diligence and due diligence starts with getting a copy of the ctc for titled properties.

A recent ctc will tell you whether the property is mortgaged or not, whether the property is under litigation or not and whether there is an adverse claim over the property (indicates if someone else is exercising a claim over the property) or not.

4. Who pays the taxes?

Be very wary of this especially if the property is an inherited one. Estate tax or tax that those who are left behind are supposed to pay over a property bequeathed to them could be costly. This should be paid by the seller but some buyers are compelled to pay them because non payment of this tax means no clearance from the BIR for titling and sellers often wash their hands of this responsibility once they have the purchase price.

Capital gains and documentary stamp tax costs 7.5% of the total purchase price or the market value whichever is higher. This tax should be paid by the seller but when the sellers indicates that she is getting net of the purchase price, this usually means that the buyer is shouldering the taxes.

5. Who pays for titling and lawyer's fees?

Yup lawyers charge 3% of the purchase price for notarization. Surveys and geodetic engineers charge a fee too when the parcel of land is not yet subdivide. The Register of Deeds charge fees for titling.

Sellers often assume that the buyers will shoulder these while buyers assume that the purchase price is what they will only cash out.

It is always best to ask these questions least you be feeling like you brought a 1000 square meter lot for a measly 150k only to find out that you will be paying taxes for 350k and titling expenses of 50k or worse you brought a property from a person who has zero authority to sell the piece of land.

How to Make Sure that Tolerated Occupants in a Vacant Lot will Not Cause a Headache in the Future

2014-09-23T20:19:00.003-07:00

Question:

Hi attorney Psyche. Ask po ako if mag patira kami ng tao sa vacant lot namin may habol ba sila if ever na gusto na namin si lang paalisin?

Answer:

Tolerated occupants of a vacant lot have no right to claim ownership over the said property. The rules only provide that they should be given a thirty day notice to vacate. The moment that they refuse to vacate after the said notice, the owner of the land may initiate an ejectment proceedings against them. In the case of Pe v. Tong G.R. No. 151369 decided on March 23, 2011 the court stated that, "A person who occupies the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him."

It is always best that a written contract between the parties are drafted. This is to ensure that the tolerated occupants are appraised of their limited rights and to make sure that the right of the owner will not be abused.

The worst kind of scenario that could happen is the prolonged tolerance of the occupants who would place improvements on the property and would claim ownership of the said portion directly or through their heirs who are not aware of the extent of the verbal agreement signed by their predecessors.

The contract would ensure that the tolerated occupants understood that they are expected to vacate anytime and the provisions of the contract could also include the treatment of the improvements. The contract could indicate that the improvements will be refunded by the owner of the land or it could be appropriated by the land owner without payment to the occupant as a form of payment for the tolerated stay in the land.

Co-maker and Checks

2014-09-16T21:06:00.003-07:00

Q. I am a co-maker in a loan agreement where the debtor used checks of other people as collateral.The debtor is no longer paying his debts and the checks bounced. What is my liability?

A. There are two possible cases that may be filed here.

One is collection of sum of money for the debt per se and violation of B.P. 22 or issuing check that bounced or not funded when encashed or deposited.

In the civil case for collection of sum of money, the debtor is the one who is primarily liable. The case will be filed against him. However, if the debtor is incapable of paying, as a co-maker, the lender may run after you. This however would only be possible if all sources of payment by the debtor had already been exhausted, if he is still capable of paying or has properties that the lender can still run after, the lender has no business suing you.

Violation of the Bouncing Checks law on the other hand is a criminal offense and liability is a personal to the owner of the check. Thus you and the debtor will not be included in the lawsuit.

Unsa Ang Arraignment?

2014-04-04T20:31:00.001-07:00

Isa ito sa kalimitang tinatanong sa akin sa aming programang Straight To The Point sa Radio Mindanao Network 927 ni Kasamang Bong Gonzales.

Ang arraignment ay isang proseso sa husgado kung saan binabasa sa akusado ang kasong inaakusa sa kanya. Ito rin ang panahon kung kailan nya pwedeng sabihin na may kasalanan sya o wala. Nirerehistro ng akusado ang kanyang plea na GUILTY (may kasalanan) o NOT GUILTY (walang kasalanan) sa tulong ng kanyang piniling abogado.

Kalimitang ang court interpreter, ang akusado at ang kanyang abogado lamang ang nagsasalita sa parte ng proseso sa korte na ito.

Maaring hindi rin muna mag pa arraign ang akusado lalo na kung kinakailangan pa ng iba pang proseso katulad na lang ng paghain ng motion to quash of di kaya ay motion for reinvestigation na kung papaboran ng korte ay magreresulta sa pagpapawalang bisa ng akusasyon at pagpapawalang sala sa akusado.

What to do when you failed to register the birth of your child.

2013-04-01T19:29:00.001-07:00

This is one of the most common questions that I am asked in our radio show Batas ng Bayan.

Do no fret you just need to:

1. Request at the NSO for a negative result - an authenticated document which shows that the child was has no birth records.

2. Request two people to execute a joint affidavit of two disinterested person stating that you as parents failed to registered the birth of your child as well as the name of the parents and the date and place of birth.

3. Ask the Local Registrar to record the birth of your child. (Late Registration)

4. Check with the NSO if the records are already available after two or three months. :)

Slaying the BAR exam Dragon

2013-03-20T20:48:00.000-07:00

Elation is the dominant emotion that I am feeling right now.

Not because I passed the BAR exam again but because a cousin of mine, Viktor Sammuel C. Fontanilla, is one of the lucky few who made it in this years' BAR exam.

The Bar exam is touted as the most difficult government administered exam and the claim probably has merits considering the vastness of the coverage, the unstable format of the exam that has undergone a number of experiments in the past recent years and the pressure that comes with taking the exam considering that it takes a village to make a lawyer.

But amidst all these fun fare and controversies that the surrounds the BAR exam and the degree of difficulty that one undergoes in order to become a lawyer is it still worth it?

The answer is yes. The legal profession is probably the only profession that opens a number of doors for its practitioners. one can choose to be in the private sector or the government. Both options also offers a variety of choices ranging from the staple criminal law practice or the almost non-existent sports law which the recent topnotcher would like to specialize on . It is also one of the professions where the impact to the people you render service is quite palpable. It directly affects their life, liberty and property as the cliche goes.

And despite the fact that a news anchor would like to believe that there are too many lawyers, which based on the statistics shown by Atty. Domondon is not true, it is still worth it to become a lawyer especially a good one.

Congratulations to those who passed the BAR and the people who supported them! :)

submitted to the sarangani journal.

Seperating Heart from Work

2013-03-11T08:21:00.000-07:00

One of the discussions that our class had in law school is a debate on what kind of lawyer would be more effective. The choice is between one who invests his emotions in his case and his client or one who detaches himself from the client and the case.

I could no longer remember the kind of lawyer that I chose but now that I am turning three in my law practice I have faced this dilemma twice already. You see I am not a person who goes through the motion of my work. I invest who I am to what I do but this same passion and commitment at some point paralyzed me and made me think of abandoning my practice. The first time was when one of my pro bono client died in prison and now when one of my client was allegedly abducted after he was recently released from prison.

I was so distraught then I am in such a bind now.

Sometimes I wish that I could just stop feeling for my clients and for my cases so that I would no longer have these moments of self searching where abandoning litigation becomes an option.

But I guess my husband is right that if I will be this affected I would no longer be an effective lawyer to those clients who still need my services.

I guess if it is a choice between an all feeling lawyer and a detached one I would choose neither.

I think I can be a more effective lawyer when I am passionate but I need to be more rationale. The point I guess is creating a balance between feeling and being numb.

For if my feelings could lead to inaction, it would be better for me to be numb but taking useful action.

March Is Women's Month

2013-03-10T05:15:00.001-07:00

Accurately, March is considered as Women's Role in History Month and March 8 as the National Women's day.

What a better way to celebrate this month with recalling some of the pieces of legislation that sought to empower women.

The most recent of this is RA 10354 of the "The Responsible Parenthood and Reproductive Health Act of 2012″. Some of the salient features of the law are access to both information and facilities for responsible parenthood, joint implementation of the provisions of the law by the national government and the local government and mandatory and age appropriate reproductive health education. All these seeks to curb maternal death,to promote reproductive health and to create an informed choice for family planning.

The United Nation's theme for Women's day this year is "A promise is a promise: Time for action to end violence against women. It is worth remembering thus a revolutionary piece of Philippine legislation that placed violence against women in the realm of public crime and no longer a mere "family matter." RA 9262 “Anti-Violence Against Women and Their Children Act of 2004″ identified four forms of violence against women: physical violence, sexual violence, psychological violence and economic abuse. It provides for protection orders for victims of these forms of violence as well as penalties for its violation. It also recognized the battered woman syndrome as a legal defense.

The Magna Carta of Women legislates modes of ending discrimination against women in the workplace and at home. It seeks to close the gender gap by ensuring that women will occupy high level positions in government in equal proportion to their male counterparts and opportunities for employment of women in the police an military. It also sought the equal access of women to land rights and penalties to identified forms of discrimination against women.

These are just three of the laws that greatly affects Filipina women. We are still a long way from closing the gender gap but through empowering pieces of legislation such as these we are slowly getting there.

(submitted as a column to the Sarangani Journal)

Relevant Laws for Women in the Workplace

2013-03-08T06:55:00.000-08:00

Republic Act 6949 declares March 8 as a working special holiday to be known as National Women's Day.

It is already a major breakthrough that this piece of legislation was passed when it comes to women empowerment but we still have a lot to go when it comes to closing the gender gap and breaking the glass ceilings.

I opt however to not dwell on what is still lacking today when it comes to legislation for women in the workplace but rather focus on what we already have.

The Constitution sets the tone for the treatment of women in the workplace. It recognizes the role of women in nation building (Art. II Section 14) and seeks to provide women with safe and healthful working conditions that takes into account their maternal functions to realize their full potential (Art. 8 Section 14)

The Labor Code previously prohibits night work for women but this was repealed by Republic Act No. 10151, “An Act Allowing the Employment of Night Workers” last June 21, 2011. The law requires that women who enage in night work are medically fit to do so. Alternative work must also be given to pregnant women.

The Labor Code also provides that appropriate facilities such as chairs, nurseries and separate comfort rooms are provided to women workers.

Both Republic Act 8282 (SSS Law) and the Labor Code provides for maternity leave for pregnant women for the first four deliveries. This leave benefit is available no only to complete deliveries but miscarriages as well.

The Labor Code also provides that women should have access to family planning which should now be in consonance with the recently passed Responsible Parenthood and Reproductive Health Act of 2012 (RA 10354).

Republic Act 9710 or the Magna Carta of women further strengthens the provision of the Labor Code which prohibits discrimination of women in the workplace when it comes to trainings, scholarships, pay and benefits. It specifically mentions women in he police and military and give preferential status for hiring women in these feilds.

The Magna Carta of Women also aims to close the gender gap by imposing that within the next five years women should compose fifty percent of those who occupy third level positions in government.

The law (RA 9710) also gave leave benefits for women who will undergo gynecological surgeries.

The Labor Code also prohibits hiring and firing policies based on marriage.

RA 9262 Anti-Violence Against Women and Their Children Act of 2004 acknowledges the worst case scenario for women in a relationship and provides for working women who are victims of abuse a leave of ten days.

These are just a few of the laws that affect women and the workplace. Hope this would help those who are interested on the rights of women in the workplace. :)

P-Noy is wrong.

2013-03-01T17:23:00.003-08:00

I wonder how the President could think that the Sultanate of Sulu will respect his orders when:

1. He insulted their capacity to fund the endeavor.

2. He insulted their claim to the Sultanate. ("This issue is complex: from the basis of our claim, to the question of the rightful heirs, and even involving the translation of documents from an era when our grandparents weren’t even born.")

3. He insulted the cause. (“You are a leader of your clan, and every leader seeks the well-being of his constituents. These times require you to use your influence to prevail on our countrymen to desist from this hopeless cause.”)

4. Worst threatened them with criminal actions.

The president and his men are ill-advised in this matter.

The people in Mindanao and the Muslims have long suffered because of the arrogance and ignorance of our national leaders.

I urge the president to issue statements that are well-thought of and to not sacrifice the interest of other sectors in Mindanao nay the whole country to hastily preserve a long sought but precarious peace with the MILF.

Now more than ever should he be more thoughtful and learned in his statements and actions.

He's Married and He Got Me Pregnant

2013-02-02T15:51:00.000-08:00

One of the frequently asked topics that is asked of me is support.

One question related to this topic that particularly interests me is whether a pregnant woman impregnated by a married man can ask for support, more so if she is not aware that he is a married man.

The answer is yes. The key incident in this circumstance is the fact that the married man got the woman pregnant. The support here is for the unborn child and not for the mother.

Our law does not seek to punish the woman who unfortunately is unaware of the circumstances of the man who impregnated her nor does it seek to punish the unborn child simply because a married man had an illicit affair with her mother.

Our law is bias towards the protection and support of the child and recognizes that the circumstances of his conception is not of his fault.

1225 Simplified

2013-01-24T04:44:00.000-08:00

Article 1225. For the purposes of the preceding articles, obligations to give definite things and those which are not susceptible of partial performance shall be deemed to be indivisible.

When the obligation has for its object the execution of a certain number of days of work, the accomplishment of work by metrical units, or analogous things which by their nature are susceptible of partial performance, it shall be divisible.

However, even though the object or service may be physically divisible, an obligation is indivisible if so provided by law or intended by the parties.

In obligations not to do, divisibility or indivisibility shall be determined by the character of the prestation in each particular case. (1151a)

This article should be read in relation the to previous articles particularly 1223 and 1224 referring to obligations that are divisible and indivisibleobligations.

The first paragraph defines indivisible obligations. These are obligations that are not susceptible of partial performance.

The second paragraph defines divisible obligations and cited examples such as work that can be done per day, considerations that are measurable or those that are capable of partial performance.

The third paragraph provides that even if the obligation is by nature divisible or indivisible law or agreement between the parties may stipulate otherwise.

The last paragraph deals with obligation not to do. It provides that the category on whether the obligation is divisible or indivisible will depend on the nature of the prestation.

Caught In The Act

2013-01-02T04:07:00.003-08:00

Imagine yourself entering a room and catching your wife in bed having sex with another man.

What would you do?

Article 247 of the Revised Penal Code contemplates this scenario.

The usual case is that you would probably be engulfed in rage and without a doubt you would hurt both of them or worst kill them.

Would you be liable?

The law provides that if you would seriously hurt them or kill them you will be penalized with destierro otherwise if they were not seriously hurt you will be totally exempt from liability.

Does the law apply to live-in partners?

Unfortunately not.

That's our topic for today. I hope you learned something.

Relevant Articles (RPC):

Art. 87. Destierro. — Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated.c

Art. 247. Death or physical injuries inflicted under exceptional circumstances. — Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

Happy New Year! (One Law Blog A Day Starts Now)

2012-12-31T16:55:00.002-08:00

My New Year's Resolution is to write one law blog a day. :)

I am starting this year with sharing two basic concepts that I always remind my listeners in our radio program Batas ng Bayan at the Radio Mindanao Network.

NUMBER 1. Agreements should be in writing.

Not because no one is worthy of trust but because memory often fails us. Even simple loan contracts like I will pay the 100 pesos that I borrowed three months from now with no interest may cause confusion if not written down. The date of payment may be an issue. Whether or not there is an interest may become a bone of contention. The amount may also become a source of argument. But when the loan agreement is written down and signed by both parties it at least minimizes the possibility of discord.

Also some transactions should be in writing in order to have a binding effect. The rate of interest for example in loan agreements. A sale of real estate if not in writing is also unenforceable. These are just two transactions that requires that they be in writing. :)

NUMBER 2. Conversion of the husband to Islam without the other spouse converting to the same faith will not qualify him to marry another.

The application of P.D. 1083 or the Code of Muslim Personal Laws of the Philippines will not apply to their marriage if only the husband converts. It requires that both spouses convert into the Islamic faith.

The usual case in our jurisdiction is that a husband converts to Islam and marries another in a Muslim rite. This is contrary to law and can make him liable for bigamy, concubinage and even violation of R.A. 9262. :)

This is it for today. Happy New Year! If you have any topics that you want me to discuss do send me an email at psychefontanilla@gmail.com or post them in the comment portion of this blog. :)