Saturday, November 5, 2016

Adultery & Concubinage: "Adulting"

Sure, marital infidelity is so popular on Philippine TV right now. There are too many shows and movies portraying how glamorous it is to be rich while being in an adulterous relationship or keeping a concubine (kabit) at home. Yes, glamorous! Have you seen any TV shows showing such relationships involving the poor? None. Because being poor and having kabit is not glamorous but the reality is, it is not just ugly, it is fugly straight to the core.

But I digress. A question was asked, what is adultery? What is concubinage? Are these two the same or are they different? 

In a way these two terms are the same in that it refers to marital infidelity. In the light of Philippine Laws (the Revised Penal Code for that matter) let's take a look at the similarities and differences of these two crimes.
Art. 333. Who are guilty of adultery - Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.
Adultery shall be punished by prision correccional in its medium and maximum periods.
If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.

That's a lot to take in, right. In a nutshell, every crime has elements, the elements in the crime of adultery are:

(1) The woman is married;

(2) She has sexual intercourse with a man not her husband;

(3) As regards the man with whom she has sexual intercourse, he must know her to be married.

If you've noticed, the primary guilty party under this provision of law is the woman. If her sexual partner knows she is married, he too is guilty of adultery. If he doesn't know she's married, he may not be liable under this provision. The second element is that both of them should have had sex. There can be as many charges for adultery against the woman (and the, man if he knows his sex partner is married) for as many times she has had sex with her lover. Can you imagine the paperwork?!

The crime of concubinage on the other hand is as follows:

Art. 334. Concubinage-Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. 
The concubine shall suffer the penalty of destierro.

Again, let's simplify this provision using its elements:

(1) The man is married;
(2) he is either-
(a) keeping a mistress in the conjugal dwelling;
(b) having sexual intercourse under scandalous circumstances with a woman not his wife; or
(c) cohabiting with a woman who is not his wife in any other place;
(3) as regards the woman, she knows the man is married.

Again, there are two offenders here. The primary offender is the man, and if his concubine knows him to be married, she will likewise be liable.

Who can file an action against their spouses? Only the offended spouse can initiate a complaint for adultery or concubinage. Your neighbor cannot do it for you. At the time of the filing of the complaint, they must be legally married, otherwise, it would be as if no complaint has been filed, or the case will be thrown out.

Granting that the spouses' sexual partners are not aware that the person they are having sex with are married, for purposes of filing the complaint, they must be joined or included in the complaint or information.

Let's have a little thought experiment here, let us suppose that Husband A and Wife B are legally married. Husband A has a mistress while Wife B likewise has a boytoy for her to sex up as she pleases. Can either one of them say, "you can't file a case against me! You're a hypocrite! You also have your own fuck buddy!" In legal parlance would concept of pari delicto be applicable since both of them have extramarital affairs? The answer is a definite no. Said doctrine is a civil one based on Art. 1411 of the New Civil Code and has no application in criminal cases.

These provisions in the Revised Penal Code are archaic and downright medieval. The penalties provided for the crimes will show that the law favors man rather than woman. Here's how the law divides the adulterous woman from the philandering man:

Penalty for Adultery (the main offender is the married woman): 
prision correccional in its medium and maximum periods
Medium period: from 2 years, 4 months and 1 day to 4 years and 2 months; 
Maximum period: from 4 years and 2 months and 1 day to 6 six years;
Penalty for Concubinage (the main offender is the married husband):
prision correccional in its minimum and medium periods.
Minimum period: from 6 months and 1 day to 6 years.
Medium period: from 2 years, 4 months and 1 day to 4 years and 2 months;

See, sexist. The woman could get jail time anywhere from 2 years to 6 years while the husband can get jail time only up to 4 years and 2 months which is considerably lesser than what the woman would get.

Likewise, in the crime of concubinage, what is this penalty called destierro for the concubine? Is it some kind of Italian dessert? No. Destierro is a penalty which has no period, it is one where a person is banished from a locality, or directed to live away from a certain area. Case law states that this really is not a penalty but more of a protective measure for the concubine as surely the legal wife would try to cause her bodily harm and other injuries (which we see on TV). Banishment. Truly an archaic form of punishment, imagine, being banished from a Municipality/City, Province, and perhaps an entire Region!

Let's think for a moment about this glamorous adulterous lifestyle we keep on seeing on TV. 




Tuesday, October 25, 2016

Non-Compete Clause in Employment Contracts: Is it valid?

A business can be considered a property right for which an employer may use reasonable means to protect such property right or business interest through the use of a Non-Compete Clause in employment contracts with its employees. The usual question asked is whether or not  a Non-Compete Clause in an employment contract is valid in the Philippines. The answer is both yes and no. 

The Supreme Court of the Philippines, as held in Rivera vs. Solidbank Corporation that: 
restrictive covenants are enforceable in this jurisdiction unless they are unreasonable.  And in order to determine whether restrictive covenants are reasonable or not, the following factors should be considered:(a) whether the covenant protects a legitimate business interest of the employer; (b) whether the covenant creates an undue burden on the employee; (c) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy.

A non-compete clause is basically a restrictive contract for which it must adhere to the aforementioned factors. In further determining the validity of non-compete clauses or non-involvement clauses, we have several jurisprudence that upholds its validity, provided that it adheres to reasonable limitations as to time, trade, and place. In Tiu vs. Platinum Plans, Inc., the Supreme Court gave several examples of what is an invalid non compete clause/non-involvement clause versus a valid one:

As early as 1916, we already had the occasion to discuss the validity of a non-involvement clause. In Ferrazzini v. Gsell, we said that such clause was unreasonable restraint of trade and therefore against public policy. In Ferrazzini, the employee was prohibited from engaging in any business or occupation in the Philippines for a period of five years after the termination of his employment contract and must first get the written permission of his employer if he were to do so. The Court ruled that while the stipulation was indeed limited as to time and space, it was not limited as to trade. Such prohibition, in effect, forces an employee to leave the Philippines to work should his employer refuse to give a written permission.
xxx                                           xxx                            xxx
However, in Del Castillo v. Richmond,  we upheld a similar stipulation as legal, reasonable, and not contrary to public policy. In the said case, the employee was restricted from opening, owning or having any connection with any other drugstore within a radius of four miles from the employers place of business during the time the employer was operating his drugstore. We said that a contract in restraint of trade is valid provided there is a limitation upon either time or place and the restraint upon one party is not greater than the protection the other party requires.
Finally, in Consulta v. Court of Appeals,  we considered a non-involvement clause in accordance with Article 1306 of the Civil Code. While the complainant in that case was an independent agent and not an employee, she was prohibited for one year from engaging directly or indirectly in activities of other companies that compete with the business of her principal. We noted therein that the restriction did not prohibit the agent from engaging in any other business, or from being connected with any other company, for as long as the business or company did not compete with the principals business. Further, the prohibition applied only for one year after the termination of the agents contract and was therefore a reasonable restriction designed to prevent acts prejudicial to the employer.
Conformably then with the aforementioned pronouncements, a non-involvement clause is not necessarily void for being in restraint of trade as long as there are reasonable limitations as to time, trade, and place.


Hounded by Credit Card Collection Agencies?

Ever had one of those days you failed to pay your credit card dues and then suddenly the credit card company's collection agency starts harassing you to pay up? Our laws provide that a creditor (such as the credit card company) can  only use acceptable means in trying to collect from you, the credit card holder, on your due/past due account. The credit card company or its collecting agency will be liable if it commits certain acts which, according to law, or rules set by the Central Bank, are considered unfair collecting practices.

The Manual of Regulations for Non-Bank Financial Institutions, Sub-sections 4301 N (14), as amended by Circular No. 454, Series of 2004 provides that credit card companies and their collection agencies are prohibited from doing the following acts:

(a) use or threat of violence or other criminal means to harm a person, his reputation or property; 
(b) use of obscenities, insults, or profane language which amount to a criminal act or offense; 
(c) disclosure of the names of credit cardholders who allegedly refuse to pay debts, unless authorized by law; 
(d) threat to take any action that cannot legally be taken; 
(e) purposely communicating or threatening to communicate false credit information; 
(f) any false representation or deceptive means to collect any debt or to obtain information concerning a cardholder; and 
(g) making contact at unreasonable/inconvenient hours before 6:00 A.M. or after 10:00 P.M., unless the account is past due for more than sixty (60) days, it is with express permission, or said times are the only reasonable or convenient opportunities for contact;
If the collecting agency/bank/credit card company/lawyer collects in such a manner as stated above, they may be liable under the Revised Penal Code as the same constitute criminal acts, and they may also be liable for damages under the Civil Code of the Philippines. This is precisely the point that
RA7653 (New Central Bank Act) stressed that banks, subsidiary or affiliate credit card companies, lawyers, collecting agencies/agents are to observe good faith and reasonable conduct, and should refrain from engaging in unscrupulous acts in trying to collect on your bill.





Monday, October 24, 2016

A Lawyer's Letter to His Son (written in detention by Sen. Jose W. Diokno to his eldest son, Jose Ramon, on 23 October 1972)



Dear Popoy,

When you asked me about a month ago, for a list of books that you could read to start studying law, I was loathe to prepare the list because I felt that you would be wasting your time studying law in this “new society.”

I am still not sure that it would be worth your while to do so.
A few days ago, while chatting with a soldier, he asked, in all seriousness and sincerity, “Pero sir, kailangan pa ba ang mga abogado ngayon?” And in a way that perhaps he did not intend, he raised a perfectly valid question.

A lawyer lives in and by the law; and there is no law when society is ruled, not by reason, but by will–worse, by the will of one man.

A lawyer strives for justice; and there is no justice when men and women are imprisoned not only without guilt, but without trial.

A lawyer must work in freedom; and there is no freedom when conformity is extracted by fear and criticism silenced by force.

A lawyer builds on facts. He must seek truth; and there is no truth when facts are suppressed, news is manipulated and charges are fabricated.

Worse, when the Constitution is invoked to justify outrages against freedom, truth and justice, when democracy is destroyed under the pretext of saving it, law is not only denied–it is perverted.

And what need do our people have for men and women who would practice perversion?

Yet the truth remains true that never have our people had greater need than today for great lawyers, and for young men and women determined to be great lawyers.

Great lawyers–not brilliant lawyers. A scoundrel may be, and often is, brilliant; and the greater the scoundrel, the more brilliant the lawyer. But only a good man can become a great lawyer: for only a man who understands the weaknesses of men because he has conquered them in himself; who has the courage to pursue his ideals though he knows them to be unattainable; who tempers his conviction with respect for those of others because he realizes he may be mistaken; who deals honorably and fairly with all, because to do otherwise would diminish him as well as them–only such a man would so command respect that he could persuade and need never resort to force. Only such a man could become a great lawyer. Otherwise, “what you are speaks so loudly, cannot hear what you say.”

For men and women of this kind, our country will always have need–and now more than ever. True, there is little that men of goodwill can do now to end the madness that holds our nation in its grip. But we can, even now, scrutinize our past; try to pinpoint where we went wrong; determine what led to this madness and what nurtured it; and how, when it ends, we can make sure that it need never happen again.

For this madness must end–if not in my lifetime, at least in yours.

We Filipinos are proverbially patient, but we are also infinitely tough and ingeniously resourceful. Our entire history as a people has been a quest for freedom and dignity; and we will not be denied our dreams.

So this madness will end; the rule of force will yield to the rule of law. Then the country will need its great lawyers, its great engineers,its great economists and managers, the best of its men and women to clear the shambles and restore the foundations of that noble and truly Filipino society for which our forefathers fought, bled and died.

So, there are two sides to the question of whether it is worth your while to study law; and, in the end, it is a question that only you can answer.

Just be sure, that, whatever be your decision, it is truly yours, that it is truly what you want, not a choice dictated by a sense of duty to follow in my footsteps.

To help you decide, I suggest that you read:

(a) The Attorney’s Oath, Form No, 28 appended to our Rules of Court; and the duties of an attorney, Rule 138, sec. 20 of the Rules of Court, which you can ask from my office;

(b) “The Five Functions of a Lawyer” in Arthur T. Vandervilt’s “Cases and Materials on Modern Procedure.”

(c) “The Chicago Lawyer’s Pledge” on p. 395, and “The Crafts of Law Re-valued” on pp. 316-322 of Karl Llewellyn’s “Jurisprudence.”

(d) “The Lawyer from Antiquity to Modern Times” by Roscoe Pound.

(e) “Men of Law” by William Seagle.

These should give you an idea of what a lawyer should be and what he has been in the past. What he is in our country, you have an idea;

(f) Martin Mayer’s “The Lawyers”, tells you what he is in the United
States; and

(g) Brian Abel-Smith’s “Lawyers and Courts”, what he is in England.

Read either and compare with our practice. And for a critique of lawyers, of courts, and even of law, read,

(h) “Law against the People,” by Robert Lefcourt.

As you read, cultivate the habit I have never been able to school myself to do of taking notes of your reading–not only of the gist of what the author says, or quotations of thoughts he felicitously expresses, but also of your reactions to his work (where you agree or disagree or suspend judgment, and why) and of the thoughts he arouses in you. File your notes in orderly fashion. They will become invaluable to you as you mature.

After you have read enough to give you an idea of what a lawyer is and does, but before you firmly commit yourself, one way or the other, discuss the matter with your wife and your friends, always bearing these things in mind:

– That the law is a demanding profession, exacting a constant and unswerving devotion that is always a thinking obedience to its ideals, and that is much harder to give than blind obedience;

– That the rewards of the law as a profession are not in wealth or even in fame, but in the respect of your peers, in the excitement of the chase after justice, and in the satisfaction not only of service to your clients but of having somehow shaped the future by molding the law of today.

This has been a long letter on a short question–whether to study law–and is not an example to be emulated should you decide in favor of law. My excuse is that time lies heavy on my hands in these days of detention, and since we can talk only in snatches when you visit, I have written at length in the hope of anticipating some of your questions.

You may suspect that, by stressing the difficulties of the law profession and by suggesting that you read some eight books before making up your mind, I am trying to discourage you from studying law. I am not. In a rather heavy-handed way, I am trying to paint the lawyer’s role as accurately as I can and show you that, if you do decide to become a lawyer, you must prepare yourself for a lifetime of study,reading, weighing and deciding, while at the same time acting and doing. It sounds impossible–but every day it has been and is being done.

I have loved the law; and I have always been proud of being a lawyer. But I have never been prouder than the day, five Sundays ago, that you told me that you wanted to study law. Regardless of what you may finally decide, the fact that you even thought of becoming a lawyer, despite my arrest and detention, allows me to hope that I have not failed as a lawyer and as a father.

For that, son, thanks.

Your father,

PEPE

Are Lawyers Drug Protectors/Coddlers?

Republic Act 9165, Sec. 3 (ee) defines what or a who a drug protector/coddler is, to wit:
Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator.

The 1987 Constitution, also provides, to wit:
Art. III, Sec. 12 (1)  Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

Art. III, Sec. 14 (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

It is the bounden duty of every lawyer, that in the defense of a person accused of a crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law. (Rule 138, Sec. 20, (i))

There are some who think that just because an attorney handles the defense in criminal cases such person is automatically a protector or a coddler. Well, in a way of speaking, yes. Lawyers are protectors and coddlers but not in the way it is defined under RA 9165 and certainly not in the way as some people (who are filing cases against lawyers on account of the type of lawyering that they do) seem to think.

What do you think? Are lawyers protectors and coddlers? Is the state a protector and coddler under the doctrine of Parens Patriae?

Correcting Errors in Birth Certificates

There are several ways to correct an error in one's record of live birth. The general rule is that if such error is not clerical in nature, the correction should be made through a Petition which will be filed in the Regional Trial Court, but I shall reserve that for another discussion as we shall look into how to correct errors in one's certificate of live birth thru administrative correction (or a correction which does not have to go through the courts).

We have two (2) pieces of legislation for this, the first one is Republic Act 9048 which was subsequently amended by Republic Act 10172. Both of these laws deal with Administrative Corrections where such petition is filed before the Local Civil Registrar.

Let's take a look at RA 9048. There are several common errors (clerical) which may be addressed by this law. Please take note that the corrections to be addressed in this law are clerical or typographical in nature. What is a clerical or typographical error? The law defines this as a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records.

Here are some examples of harmless/innocuous errors or misspelled name:

Huan instead of Juan; Mery instead of Mary; Carlu instead of Carlo; it could even be something like where a common name has been transcribed in a manner which was not the intention of the parents/informant. An example would be Ra Quel instead of Raquel; Rose Anne instead of Roseanne. An error could even be a phonetic rendering of a simple name such as Bartoleme instead of Bartholomew. There are many more examples which I will no longer make mention as it will fill up this entire article. 

Aside from the correction of such harmless errors, RA 9048 even allows one to change one's First name or Nickname but under stringent conditions. The law provides that such a change will be allowed if the Petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce. 

An example would be the child was named Baby Boy de la Cruz; Baby Girl de la Cruz; Lord Voldemort de la Cruz; or one of those awful made up names and even names which have disparaging connotations, or those which may be considered as tongue twisters even. 

The law even allows one to use a name which you have habitually and continuously used and you are publicly known by that name despite what appears on your birth certificate. Say for example you are known in the community as John but your birth certificate states that your name is Juan. It is possible to have your name changed to John if are habitually and continuously using that name. 

And finally, the change will avoid confusion. This is one of the more important parts of RA 9048 or change of name/nickname. If all of your government ids, school records, and public records show that you are using a different name than that which appears on your record of birth, you are allowed by the law to have your name changed to that which you habitually use in order to avoid confusion.

Then we come to the amendment of RA 9048. RA 10172 allows for the administrative correction of typographical errors in the day and month in the date of birth or sex of a person appearing in his record of birth. 

Let's discuss the first part, say there was an error on the day and month when you were born. The law allows for administrative correction. But if the error involves the year of birth, sadly, such error cannot be corrected under this law and that the usual procedure would be to have it corrected via petition that will be filed in the Regional Trial Court. Errors in the year of birth is not considered harmless or innocuous. 

Now, let's go over a more interesting aspect of this law, RA 10172 allows for the correction of one's gender in your record of birth, but mind you, this involves only a correction of an error, not carte blanche authority for you to change your gender just because you have had sex reassignment surgery in Thailand. There are times that one's gender has been incorrectly reported by the informant or the typist/clerk mistakenly entered a different gender than what your biological gender is. 

To properly have your gender corrected in your record of birth, you must have yourself examined by a Government Physician who shall certify that you have not gone through any sex-reassignment surgery. You must either be biologically male or female. If you went through any sex-reassignment surgery or you feel that you are female even if biologically you are not, you cannot correct such entry in your record of birth. 

I remember having attended legal aid and many were surprised that one's gender in the birth certificate may be corrected. Sadly, some did not notice the part where I said that there should be an error in the entry and that one must not have had sex-reassignment surgery; it does not even relate to sexual preference. Throngs of gays huddled around my desk and they were quite disappointed when I told them how the law is to be applied. Sorry folks, you can't have cheap sex-reassignment through the correction of your birth certificate. 

If the errors or corrections needed to be made fall squarely on the matters discussed under RA 9048 as amended by RA 10172, there shouldn't be any need to file a Petition in the Regional Trial Court to correct those errors, but alas, there are still matters not covered by these laws, which I shall discuss in another post in the future.



Thursday, April 28, 2016

Decent?

Our society is not just made up of decent people, it's also made up of prostitutes, vagrants, leftists, rightists, elitists, the rich, the poor, blue collar job holders, white collar job holders, the hopeless, the victims, "victimizers", and generally the sweaty masses as a whole without regard to whether we consider them decent or not. 

Let us not put a divide on what we consider THE FILIPINO people. We should not just say that we should give back the country to the decent, rather, we should say that we give back the country TO THE PEOPLE. 

Come May 9, 2016 cast your vote for whoever it is you wish to vote for and give back the country to the PEOPLE. Remember Cebuanos that the "authority of the government emanates from the PEOPLE."

Let's put an end to all this divisiveness and use our time wisely by voting wisely and campaigning wisely. Keep hydrated and enjoy the summer.
How's that for a campaign slogan?

Sunday, November 1, 2015

Habak (Bullet Anting-Anting), Airports, and the Law.




In the Visayas, HABAK is a common anting-anting (kalaki) using ammunition shell casings. The shell casings are filled with herbs, medicinal plants, oils, pieces of paper with latin prayers on them. The opening is crimped shut and a hole is punched where a piece of string is passed through. A Habak is usually worn on the hips or on the waist.

A few years back, the old firearms law (PD 1866 as amended by RA 8294) was repealed by the New Firearms Law, also known as Comprehensive Firearms and Ammunition Regulation Act (RA 10591). Let's take a look at these laws:

PD 1866: Ammunition was not defined.
RA 8294: Ammunition was not defined.
RA 10591: Sec. 3,  (b) Ammunition refers to a complete unfixed unit consisting of a bullet, gunpowder, cartridge case and primer or loaded shell for use in any firearm.

Let's take a look at the Visayan Habak Anting-Anting, it's merely a shell casing/cartridge without any bullet and gunpowder. Using the law's definition of what Ammunition is, HABAK cannot be considered as ammunition as it is, in its entirety, incomplete.

What should you do if you are held at the airport for allegedly carrying "ammunition" consisting of a HABAK on your person. You could argue that under the law, by its very definition, a habak cannot be considered as ammunition, and that the security personnel who hassled you should just shut the fuck up and die.

But all the same, it would be such a hassle on your part to have to argue with so-called airport security on the definition of Ammunition since it is very likely that most of them have not even read the new law, or even understood it.

Tuesday, October 27, 2015

Management Prerogatives

When I used to teach Labor Law to college undergraduates, a big part of our discussion was about Management Prerogatives, I do hope my students retained something after hours and hours discussing these 13 slides:


Sunday, October 25, 2015

Annulments in the Philippines

A few years back, I presented the essentials of Annulments and Declaration of Nullity of Marriage at the University of San Jose - Recoletos. While going over my files, I found my presentation slides. For those wanting to know what an Annulment is or what a Declaration of Nullity of Marriage is, please read on. A word of caution for the readers, this topic refers to a CIVIL application for Annulment / Declaration of Nullity of Marriage and not a CHURCH application. Please refer to my earlier post on the topic.