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WE’RE MOVING

the legally inclined — Wed, 12 Nov 2008 10:16:20 +0000

Hello to all =)

We’re trying a new neighborhood and here’s our new address thelegallyinclined.blogspot.com.

Hope you can visit!

WEIGHT AND SEE

the legally inclined — Mon, 10 Nov 2008 02:00:16 +0000

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WEIGHT AND SEE
Obesity as Ground for Termination
By Obiter07

In a recent ruling, the Supreme Court upheld the dismissal of a flight steward on the ground of obesity. YRASUEGUI vs PHILIPPINE AIRLINES, INC. ( G.R. No. 168081 October 17, 2008) an international flight steward was dismissed for “his failure to adhere to the weight standards of the airline company.” It sounds discriminatory but the Court found that it was not.

On various dates, Petitioner was at 209 pounds, 217 pounds and 212 pounds, well beyond “the ideal weight being 166 pounds, as mandated by the Cabin and Crew Administration Manual of PAL.” When found to be overweight, he was asked to go on leave in order to address this. He was unable to comply and in one instance, he even gained weight instead by 49 pounds beyond the limit. He was restricted to ground duty as a result. He made a written commitment to reduce his weight.

He remained overweight despite periods given to him in order to comply. He failed to report for weight checks and was “formally warned that a repeated refusal to report for weight check would be dealt with accordingly.”

In 1992, he was finally served a “Notice of Administrative Charge for violation of company standards on weight requirements” and given 10 days to answer. In his answer, he did not deny being overweight. He claimed that his violation had been condoned by PAL and that PAL had discriminated against him considering that there were “cabin crew members who are similarly situated.”

In 1993, “petitioner was formally informed by PAL that due to his inability to attain his ideal weight, “and considering the utmost leniency” extended to him “which spanned a period covering a total of almost five (5) years,” his services were considered terminated “effective immediately.” He filed a complaint for illegal dismissal against PAL. The Labor Arbiter ruled in his favor but this was overturned by the Court of Appeals. Hence, his recourse to the Supreme Court.

He argued that “(1) his dismissal does not fall under 282(e) of the Labor Code; (2) continuing adherence to the weight standards of the company is not a bona fide occupational qualification; and (3) he was discriminated against because other overweight employees were promoted instead of being disciplined.”

The Court found that obesity of petitioner is a ground for dismissal under Article 282(e) of the Labor Code. It found that the weight standards of PAL “constitute a continuing qualification of an employee in order to keep the job.” And “an employee may be dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight standards.” Hence a dismissal of the employee falls under Article 282(e)^[1] of the Labor Code. It did not give credence to Petitioner’s claim that obesity is a “physical abnormality and/or illness,” citing Nadura v. Benguet Consolidated, Inc. The Supreme Court did not find the case applicable as it was not decided under the Labor Code. Moreover, there was no issue of flight safety in the aforecited case. In Nadura the dismissal was due to illness in contrast to the instant case where petitioner was dismissed for his failure to meet the weight standards of his employer. Another issue in Nadura is whether or not the dismissed employee is entitled to separation pay and damages. Here, the issue is the propriety of the dismissal. Fifth, in Nadura, the employee was not accorded due process. Here, petitioner was accorded “utmost leniency”, having been given more than four (4) years to comply with the weight standards.

The Court found that the evidence “on record militates against petitioner’s claims that obesity is a disease.” He was able to reduce weight given the “proper attitude, determination, and self-discipline.” He even admitted during a hearing that he could bring down his weight. The Court opined that “his fluctuating weight indicates absence of willpower rather than an illness.”

The Court also did not give weight (no pun intended) to petitioner’s citation of Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation and Hospitals, decided by the United States Court of Appeals (First Circuit). In that case, it was held that morbid obesity is a disability under the Act cited therein and that respondent discriminated against her “based on “perceived” disability.” Evidence was introduced to show morbid obesity is a physiological disorder.

The Supreme Court found that petitioner is not morbidly obese. In the Cook case, the plaintiff was 100 pounds overweight. Petitioner was only less than 50 pounds over his ideal weight at his heaviest. One is tempted to thus ask if the Court would have decided in his favor if he had weighed more.

The Court held that the obesity of petitioner, in the context of his work as flight attendant, “becomes an analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the service.” His obesity may not be intentional but it is “voluntary.” This element runs through all just causes under Article 282.

Petitioner likewise argued that there should be a statute constituting a “bona fide occupational qualification” (“BFOQ”) where an exception allows “an employer to engage in an otherwise unlawful form of prohibited discrimination if necessary to the normal operation of a business or enterprise.” Petitioner claims that since there was no such statute, there is no justification for his dismissal.

The court stated that there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute. The weight standards of PAL are reasonable. PAL being a common carrier “is bound to observe extraordinary diligence for the safety of the passengers it transports.” The weight standards of PAL show its effort to comply with these exacting obligations. PAL “has committed itself to safely transport its passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the cabin flight deck crew who are on board the aircraft.”

Flight safety was given primary importance by the court, stating that: It cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on their ability to care for the passengers when something goes wrong. It is not farfetched to say that airline companies, just like all common carriers, thrive due to public confidence on their safety records. People, especially the riding public, expect no less than that airline companies transport their passengers to their respective destinations safely and soundly.”

Cabin crew do not only serve meals or attend to passengers’ whims. Their “most important activity” is “to care for the safety of passengers and the evacuation of the aircraft when an emergency occurs. Passenger safety goes to the core of the job of a cabin attendant. Truly, airlines need cabin attendants who have the necessary strength to open emergency doors, the agility to attend to passengers in cramped working conditions, and the stamina to withstand grueling flight schedules.” And the “body weight and size of a cabin attendant are important factors to consider in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors.” Airline companies cannot be compelled to reconfigure the aircraft just for overweight cabin attendants.

He was also found to be in estoppel since the weight standards were made known to him prior to his employment. He never questioned the authority of PAL when he was asked to trim down his weight. The Court even lapsed into Latin and Filipino: “Bona fides exigit ut quod convenit fiat. Good faith demands that what is agreed upon shall be done. Kung ang tao ay tapat kanyang tutuparin ang napagkasunduan.”

His allegation that he was discriminated against was not given credence. Except for pointing out the names of the supposed overweight cabin attendants, he “failed to indicate their respective ideal weights; weights over their ideal weights; the periods they were allowed to fly despite their being overweight; the particular flights assigned to them; the discriminating treatment they got from PAL; and other relevant data that could have adequately established a case of discriminatory treatment by PAL.”

Nevertheless the Court granted him separation pay even if normally, a legally dismissed employee is not entitled to separation pay. But it may be awarded as an act “social justice,” or based on “equity”, if the dismissal is not for serious misconduct and does not reflect on the moral character of the employee. He was thus given separation pay equivalent to one-half (1/2) month’s pay for every year of service.

It is with some irony that the scales of justice did not tip in favor of the petitioner here. However, this did involve a special case, where the nature of an employee’s duties with respect to flight safety was given emphasis by the Court. Not every job would be the same and mere obesity should not be a ground for dismissal. But health issues should be enough to compel an employee to lose weight not out of fear for his job but for fear for his life.

[1] Article 282 provides: “Termination by employer. — An employer may terminate an employment for any of the following just causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.

From Dynamite To Peace, With Poetry Along The Way

the legally inclined — Sun, 02 Nov 2008 03:34:26 +0000

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From dynamite to peace, with poetry along the way
(The Nobel Prizes)
By Siesta-friendly

He developed nitroglycerine as an explosive. He invented dynamite and had it patented. Yet, after his death, Alfred Bernhard Nobel (1833-1896) became famous for the yearly prizes in his name for achievements in peace, literature, medicine, medicine, physics and chemistry.

No, he wasn’t the father of all makeovers. Growing up, Nobel favored poetry and literature alongside physics and chemistry. And he did concentrate on nitroglycerine for construction work, to be fair. So he wasn’t really the violent turned Renaissance man.

Still, the extraordinary will he left behind caught people by surprise, no less his heirs (but that’s another story). And every October, we marvel at the selected laureates and their contributions for the development of mankind, in the name of the man whose legacy made us recognize them in the first place.

The Legacy of all Legacies

Well, ok, not counting the gospels left by you-know-who. Anyway, beyond bequeathing money and property to family, friends, servants, Nobel established a unique and lasting legacy to the rest of the world which begins thus:^[1]

“The whole of my remaining realizable estate shall be dealt with in the following way: the capital, invested in safe securities by my executors, shall constitute a fund, the interest on which shall be annually distributed in the form of prizes to those who, during the preceding year, shall have conferred the greatest benefit to mankind. The said interest shall be divided into five equal parts, which shall be apportioned as follows: one part to the person who shall have made the most important discovery or invention within the field of physics; one part to the person who shall have made the most important chemical discovery or improvement; one part to the person who shall have made the most important discovery within the domain of physiology or medicine; one part to the person who shall have produced in the field of literature the most outstanding work in an ideal direction; and one part to the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.”

Following the above with –

“The prizes for physics and chemistry shall be awarded by the Swedish Academy of Sciences; that for physiological or medical work by the Caroline Institute in Stockholm; that for literature by the Academy in Stockholm, and that for champions of peace by a committee of five persons to be elected by the Norwegian Storting. It is my express wish that in awarding the prizes no consideration whatever shall be given to the nationality of the candidates, but that the most worthy shall receive the prize, whether he be a Scandinavian or not”,

the 5 Nobel committees were soon set up by the 4 named institutions within 2 years from his death (a sixth prize was added in 1968 but more on that later). 2 years later, the Nobel Foundation was established to be the over-all administrator of Nobel’s fund.

As an aside, though Swedish, Nobel included the Norwegian Storting (Parliament) because Sweden was during his lifetime united with Norway (the union ended in 1905).

There were many details missing in Nobel’s will, which partly accounted for the delay in setting up the committees and the foundation (the heirs it seems accounted for the other part). However, once the foundation was established the statutes (partly discussed below) were soon drawn up to provide necessary guidelines. Of course, the prize-awarding bodies (the 4 named institutions in the will) have more detailed rules as regards the award of their respective prizes.

Statutes of the Nobel Foundation

a) Eligibility

“To be eligible to be considered for a prize, a written work shall have been issued in print or have been published in another form, to be decided on its own behalf by each prize-awarding body.” (Paragraph 3)

“A prize amount may be equally divided between two works, each of which is considered to merit a prize. If a work that is being rewarded has been produced by two or three persons, the prize shall be awarded to them jointly. In no case may a prize amount be divided between more than three persons.” (Paragraph 4) Organizations, of course, count as 1. To date, there have been 20 organizations which have won Nobel prizes.

”Work produced by a person since deceased shall not be considered for an award. If, however, a prizewinner dies before he has received the prize, then the prize may be presented.” (supra) This was an amendment introduced in 1974. Before 1974, the Nobel Prize was twice awarded posthumously: to Dag Hammarskjöld and Erik Axel Karlfeldt (Nobel Prize in Literature 1931).^[2]

b) Nominations

“To be considered eligible for an award, it is necessary to be nominated in writing by a person competent to make such a nomination. A personal application for an award shall not be considered.” (Paragraph 7) In fact, invites are sent by the different Nobel committees to selected people for them to nominate candidates.

“Competence to submit nominations shall be incumbent on representatives, domestic as well as foreign, of the field of culture in question, in conformity with detailed regulations issued by the prize-awarding body.” (supra) Hence, the invites are mostly sent to scientists, professors, and other experts in their fields.

“Each year the prize adjudication shall embrace such nominations as have been submitted during the preceding twelve months up to February 1.” (supra) Actually, the invites are sent out in September of the previous year.

“Nominations should be explained and accompanied by the publications and other documents cited in support of them.” (Paragraph 8 )

“Where a nomination is written in a language that cannot be translated without particular trouble or considerable expense, or where, to be able to appraise a proposed work, the prize-awarding body must chiefly make itself acquainted with the contents of a document written in such a language, the prize-awarding body shall not be under obligation to take up the nomination for further consideration.” (supra) Seems unfair but what can we do? Maybe this is partly why most laureates are Westerners.

Procedure^[3](more or less)

The processes vary slightly per committee but they are very similar:

September – Nomination forms are sent out. The Nobel Committees send out confidential nomination forms to thousands of people (university professors around the world, scientists, past Nobel Laureates, etc).

February – May – Deadline for submission. The completed nomination forms must reach the relevant Nobel Committee by 31 January, or postmarked 1 February in the case of the Peace Prize, of the following year. The relevant Committees then screen the nominations and select the preliminary candidates for approval by their respective award-giving institutions.

June-August – Writing of the report. The Nobel Committees prepare their reports with recommendations to be submitted to their respective award-giving bodies.

September – Committee submits recommendations. The Nobel Committees submit their reports which are then taken up by the relevant award-giving bodies.

October – Nobel Laureates are chosen. In early October, the Nobel Laureates are selected. The names of the Nobel Laureates are then announced on the same day.

December –Nobel Laureates receive their prize. The Nobel Prize Award Ceremony takes place on 10 December (Nobel’s death anniversary) in Stockholm or Norway (in the case of the Peace Prize), where the Nobel Laureates receive their Nobel Prize, consisting of a Nobel Medal and Diploma, and a document confirming the prize amount.

c) Prizes

“A work may not be awarded a prize, unless it by experience or expert scrutiny has been found to be of such outstanding importance as is manifestly intended by the will.” (Paragraph 5)

There are 5 Nobel prizes awarded pursuant to Nobel’s will. But there are actually 6 recognized Nobel Prizes because in 1968, Sweden’s central bank, Sveriges Riksbank, established the Nobel Prize for Economics in memory of Alfred Nobel.^[4] Together with the Nobel laureate for physics and chemistry, the laureate for economics is chosen by The Royal Swedish Academy of Sciences.

The prize-awarding bodies have Nobel Committees for each prize. The committees are responsible for selecting the candidates from the nominees submitted by their invited experts.

The Nobel Foundation has no say in selecting any laureate.^[5]

“No appeals may be made against the decision of a prize-awarding body with regard to the award of a prize.

Proposals received for the award of a prize, and investigations and opinions concerning the award of a prize, may not be divulged. Should divergent opinions have been expressed in connection with the decision of a prize-awarding body concerning the award of a prize, this may not be included in the record or otherwise divulged.

A prize-awarding body may, however, after due consideration in each individual case, permit access to material which formed the basis for the evaluation and decision concerning a prize, for purposes of research in intellectual history. Such permission may not, however, be granted until at least 50 years have elapsed after the date on which the decision in question was made.” (Paragraph 10) So, whatever rumours we hear of nominees, they’re just that, rumours.

Trivia^[6]

Since the beginning, in 1901, 789 individuals and 20 organizations have received Nobel prizes. Although in all, 811 prizes have been awarded (789 + 20 only equals 809) this is so because there are 2 individuals who won in 2 different categories each.

Marie Curie received the prize for physics in 1903, jointly with her husband Pierre for “their joint researches on the radiation phenomena” and for chemistry in 1911 for “the discovery of the elements radium and polonium”. The Curie family are an inspired lot. Marie and Pierre’s daughter, Irene – together with husband Frédéric Joliot – won the chemistry prize in 1935 “in recognition of their synthesis of new radioactive elements.”

Linus Pauling is the next double recipient. He received his prizes: for chemistry in 1954 “for his research into the nature of the chemical bond and its application to the elucidation of the structure of complex substances” and for peace in 1962. Another interesting fact about M. Pauling is that he received his 2 prizes solo.

There are 4 other double recipients but they all received prizes for the same categories. 2 were individuals. John Bardeen received 2 physics prizes, first the 3-man prize “for their researches on semiconductors and their discovery of the transistor effect” then the 1972 (again) 3-way prize “for their jointly developed theory of superconductivity”. Frederick Sanger received the 1958 and the 1980 prizes in chemistry, the former “for his work on the structure of proteins, especially that of insulin and the latter (a 3-man prize) “for their contributions concerning the determination of base sequences in nucleic acids”.

The next 2 were organizations. The 1^st is actually a triple recipient. The Comité International d e la Croix Rouge (The International Committee of the Red Cross) received the 1917, 1944 and 1963 awards for peace. And, the Office of the United Nations High Commissioner for Refugees received the 1954 and the 1981 prizes for peace.

The youngest laureate was then 25 year old William Lawrence Bragg who received the physics prize together with his father in 1915 “for their services in the analysis of crystal structure by means of X-rays”. The oldest was 90 year old Leonid Hurwicz who shared the 3-man economics prize in 2007 “for having laid the foundations of mechanism design theory”.

Nobel prizes offer recognition to the laureates and their work, and inspiration to all of us. Alfred Nobel remains a remarkable man 111 years after his death. For his contributions during his lifetime but most especially for the noble legacy he left behind.

[1] Alfred Nobel’s Will. Retrieved October 23, 2008, from The Official Web Site of the Nobel Foundation Web site: http://nobelprize.org/alfred_nobel/will/will-full.html

[2] Nomination Facts. Retrieved October 27, 2008, from The Official Web Site of the Nobel Foundation Web site: http://nobelprize.org/nomination/nomination_facts.html

[3] >See Frequently Asked Questions, Nominations, The Official Web Sit of the Nobel Foundation Web site: http://nobelprize.org/contact/faq/index.html#nobelprize

[4]The Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel. Retrieved October 27, 2008, from The Official Web Site of the Nobel Foundation Web site: http://nobelprize.org/nobel_prizes/economics/

[5] The Nobel Prize Awarders. Retrieved October 27, 2008, from The Official Web Site of the Nobel Foundation Web site: http://nobelprize.org/prize_awarders/

[6] Frequently Asked Questions. Retrieved October 27, 2008, from The Official Web Site of the Nobel Foundation Web site: http://nobelprize.org/contact/faq/index.html

GIVING PIECE OF MIND

the legally inclined — Sat, 25 Oct 2008 06:14:59 +0000

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GIVING PIECE OF MIND
Elements and Instances of Libel
By Obiter07

Speaking your mind may not be all that it is cracked up to be, especially when it constitutes libel which is a crime under the Revised Penal Code. Commentators on television and radio, as well as columnists in the newspapers, court the risk of imprisonment for every exposé and article that they make. However, this is risk which can also be faced by you and me, for opening our mouth to say something against another. So curb that urge to share your opinion that someone is a “moron”, until you have seen what you may be up against. Getting something out into the open could result in jailtime for airtime.

What is libel? It is “a public and malicious imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead” (Article 353, Revised Penal Code).

There are essentially 4 elements, namely: (a) the allegation of a discreditable act or condition concerning (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice(Brillante vs. Court of Appeals, supra). Thus, for an imputation to be libelous, it must be defamatory, malicious, published, and the victim is identifiable (Binay vs. Secretary of Justice, G.R. No. 170643, September 8, 2006).

THE FIRST ELEMENT: MAKING THE MALICIOUS IMPUTATION

Examples of the first element in the Philippine setting are as follows: referring to someone as a swindler, a murderer, a bigamist, of engaging in influence peddling or accusing someone of winning elections through fraud and vote buying, of engaging in lascivious or immoral habits, of borrowing money with no intention to pay, of ordering teeth to be fixed without paying the fees for it, calling a person a bastard or a leper, a “coward, vile soul, dirty-sucker, savage hog who looks toward the ground” or a witch or a sorceress. (Reyes, The Revised Penal Code, Book II (1981), pp. 921-922 citing cases). Please note that any one of the epithets will do, you don’t have to mention all of them in one go however applicable they may all be.

In a more recent case, a journalist was found guilty of libel against a customs lawyer, for accusing him of “being involved in criminal activities” of “using his public position for personal gain,” calling him “an embarrassment to his religion, saying “ikaw na yata ang pinakagago at magnanakaw sa miyembro nito,” accusing him further of “stealing from the government with his alleged corrupt activities.” After the lawyer filed suit, he wrote to challenge the lawyer saying, “Nagalit itong tarantadong si xxx dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].” (Tulfo vs. People et al, G.R. No. 161032, September 16, 2008)

SECOND ELEMENT: PUBLICATION

Publication is the communication of the defamatory matter to some third person or persons. This can be through writing a letter containing the defamatory imputation to a person other than the person defamed (Reyes, supra, citing People vs. Atencio, CA-G.R. Nos. 11351-R to 11353-R, December 14, 1954).

The reason for this requirement is that a communication of the defamatory matter to the person defamed cannot injure his reputation although it may wound his self-esteem. A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him (Magno vs. People, G.R. No, 133896, January 27, 2006). Having a sound reputation does pay since a scoundrel would have nothing to protect and can have no cause to complain of defamation.

THIRD ELEMENT: IDENTITY

Someone else must be able to tell that the libel concerns you. It is not enough if you feel alluded to. It is not sufficient that the offended party recognized himself as the person attacked or defamed; it must be shown that at least a third person could identify him as the object of the libelous publication.^[1]

But you don’t have to be expressly named. Some would try to avoid prosecution by using indirect language or by means of blind items. It has been held that in order to maintain a libel suit it is essential that the victim be identifiable, although it is not necessary that he be named. It is enough if by intrinsic reference to the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the plaintiff was intended, or if he is pointed out by extraneous circumstances so that the person knowing him could and did understand that he was the person referred to.^[2]

FOURTH ELEMENT: MALICE

In GMA Network, Inc. vs. Bustos, G.R. No. 146848, October 17, 2006, the Court discussed two types of malice, one which may be presumed and the other which has to be proven:

“Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of the imputation (malice in law). Malice, as we wrote in Brillante v. Court of Appeals, is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. Malice implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous or defamatory remarks made the same with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.”

Please note that the presumption is that every defamatory imputation is malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in cases concerning privileged communications (Article 354, Revised Penal Code). Hence, the burden of proving justifiable motive is upon the author of the libel (Daez vs. Court of Appeals, G.R. No. 47971, October 31, 1990).

But, where the communication is privileged, malice is not presumed from the defamatory words. The presumption of malice does not arise in the two cases of privileged communication, to wit:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions (Article 354, Revised Penal Code).

However, libelous remarks or comments connected with the matter privileged under the above-cited provisions, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability (Article 362, RPC). The Court in Lu Chu Sing v. Lu Tiong Gui clarified that the fact that a communication is privileged does not mean that it is not actionable; the privileged character of the communication simply does away with the presumption of malice, and the plaintiff has to prove the fact of malice in such case (Brillante vs. Court of Appeals, G.R. No. 118757 & 121571, October 19, 2004).

CONSEQUENCES

Why should you not give in to your impulses? If libel is committed by means writings or similar means, oes not seem that big but any period of incarceration is a substantial deterrent not to say something no matter how tempting it might be to do so. So the rule of thumb may be: do you really need to say it and is it worth it? You can always just think it. In the words of the Court, the “law permits us to think as badly as we please of our neighbors so long as we keep our our uncharitable thoughts to ourselves ^[6] It may really be wise to hold our peace and not say our piece against someone.

^[3] the penalty is imprisonment ranging from 6 months and 1 day to 2 years to 11 months and 10 days or the payment of a fine ranging from 6,000 to 9,000 pesos or both imprisonment and a fine.^[4] Damages may also be recovered against you by the offended party in the criminal proceeding or as a separate civil action.^[5]
<

[1] Reyes, Ibid,. at 925, citing Kunkle vs. Cablenews-American, 42 Phil. 757.

[2] Reyes, Ibid., at 925-926, citing Corpus vs. Cuaderno, Sr., 16 SCRA 807.

[3] ARTICLE 355. Libel by means writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

[4]Reyes, Ibid., p. 1008.

[5] Article 360, Revised Penal Code and Article 33, New Civil Code.

[6] Ibid, citing People vs. Atencio. p. 824

Releasing your Inner Angelina Jolie

the legally inclined — Sat, 18 Oct 2008 04:15:36 +0000

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DOCTOR SAN

the legally inclined — Sat, 11 Oct 2008 07:08:39 +0000

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DOCTOR SAN

Not So Bon Voyage

the legally inclined — Sat, 04 Oct 2008 01:52:15 +0000

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FAILED ATTEMPT BUT STILL NOT FRUSTRATED

the legally inclined — Mon, 29 Sep 2008 06:40:39 +0000

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Ooops … they did it again

the legally inclined — Mon, 22 Sep 2008 02:22:43 +0000

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Ooops … they did it again
(The Government’s liability in cases of Unjust Imprisonment or Detention and when there are victims of Violent Crimes)
By Siesta-friendly

To err is human so they say. But to err twice for the same offense – what is that called? Inhuman? Sounds about right if one looks at the pertinent provisions of Republic Act No. 7309 (“An Act Creating A Board Of Claims Under The Department Of Justice For Victims Of Unjust Imprisonment Or Detention And Victims Of Violent Crimes And For Other Purposes”, March 30, 1992).

R.A. 7309 apparently seeks to redress injustices committed by government. But a 2^nd injustice seems the inevitable result.

Claims For Compensation

RA 7309 starts off a little promising. Under its Section 3, the following are allowed to file claims for compensation before the Board of Claims:

a) any person who was unjustly accused, convicted and imprisoned but subsequently released following an acquittal. The use of the word ‘unjustly’ is crucial. Not every person who is acquitted can file a claim with the Board.

In Felicito Basbacio vs. Office of the Secretary, Department of Justice (G.R. No. 109445 November 7, 1994), petitioner was convicted, with his son-in-law, of frustrated murder. Petitioner had a land dispute with the victim and was at the scene of the crime when his son-in-law started shooting the victim. On this basis, the prosecution found probable guilt to charge petitioner with conspiracy to commit the murder. However, on appeal, petitioner was acquitted for failure of the prosecution to prove conspiracy. Petitioner then filed a claim before the Board of Claims.

In denying petitioner’s claim, the Supreme Court held that “sec. 3(a) does not refer solely to an unjust conviction as a result of which the accused is unjustly imprisoned, … The accused must have been “unjustly accused, in consequence of which he is unjustly convicted and then imprisoned … if the prosecution is not malicious any conviction even though based on less than the required quantum of proof in criminal cases may be erroneous but not necessarily unjust.

The reason is that under Rule 112, sec. 4 [Rules of Court], the question for the prosecutor in filing a case in court is not whether the accused is guilty beyond reasonable doubt but only whether “there is reasonable ground to believe that a crime has been committed and the accused is probably guilty thereof.” Hence, an accusation which is based on “probable guilt” is not an unjust accusation and a conviction based on such degree of proof is not necessarily an unjust judgment but only an erroneous one … ”

b) any person who was unjustly detained and released without being charged;

c) any victim of arbitrary or illegal detention by the authorities as defined in the Revised Penal Code (RPC) under a final judgment of the court; and

d) any person who is a victim of violent crimes. (Under the Act, violent crimes include rape and offenses committed with malice which resulted in death or serious physical and/or psychological injuries, permanent incapacity or disability, insanity, abortion, serious trauma, or committed with torture, cruelly or barbarity). Unfortunately, we are not aware of any case regarding this particular situation so we cannot expound on this topic.

A careful reading of the above reveals that the following equally unjust scenarios are not covered:

a) a person unjustly accused, convicted and imprisoned but released only after serving sentence;

b) a person unjustly charged but somehow released before trial;

c) a victim of arbitrary or illegal detention by the authorities as defined in the RPC. Since arbitrary detention is easily determined by just counting the number of days of detention, it shouldn’t be necessary to have a court trial to determine whether or not it was committed. An administrative investigation should be enough.

Compensation

Now we go to the 2^nd error we mentioned. The 1^st error, of course, is the injustice committed as enumerated in the 4 instances earlier. The 2^nd error, as you may have guessed, is the money to be paid as compensation for the injustice.

Under Section 4 of the Act, a maximum paltry amount of P1,000.00 for every month of imprisonment or detention (every fraction thereof being considered 1 month) shall be given to victims of unjust imprisonment or detention. That’s P1,000.00 for every month you are detained without just cause, separated from your friends, family, away from the comforts of home, in the company of real criminals, and without means of livelihood. P1,000.00 is not even close to a month’s minimum wage.

In all other cases, the maximum total amount of P10,000.00, or the amount necessary to reimburse the claimant the expenses incurred for hospitalization, medical treatment, loss of wage, loss of support or other expenses directly related to injury, shall be paid, whichever is lower.

Fortunately, the lawmakers had the good sense to include that the compensation “is without prejudice to the right of the claimant to seek other remedies under existing laws.” A civil liability suit for damages can always be filed in court against the perpetrators (pursuant to the New Civil Code). But it certainly would have been very helpful if the Board of Claims could also entertain claims for remedies like these against the government.

Filing of Claims

Section 5 of the Act provides that claims must be filed within 6 months after being released from imprisonment or detention, or from the date the victim suffered damage or injury, otherwise, the claim is deemed waived. So instead of getting re-acquainted with family and friends, getting your life back in order, maybe even getting medical attention for whatever our Philippine National Police is notorious for, you’re expected to prepare and file your claim as soon as possible lest the 6 months lapse. Very considerate.

In case of death or incapacity of any person entitled to any award, the claim may be filed by his heirs, in the following order: by his surviving spouse, children, natural parents, brother and/or sister. (Section 6)

The Board is mandated to resolve claims within 30 working days after filing of the application as well as to adopt an expeditious and inexpensive procedure for claimants. (Section 7)

Appeals are brought before the Secretary of Justice within 15 days from receipt of the resolution of the Board. (Section 8 ) Although the same provision states that the Secretary’s decision is final and executory, there is always the special civil action for certiorari under Rule 65 of the Rules of Court in case the Secretary is alleged to have acted with grave abuse of discretion. (Felicito Basbacio vs. Office of the Secretary, Department of Justice, ibid.)

It could be telling on the actual benefit of this law that we only found 1 case involving it. Lawyers’ fees alone matched up against the possible compensatory award could be enough to dampen victims’ hopes of being really compensated for the injustice done to them. And so the injustice hits the victims one more time.

Without A Trace

the legally inclined — Sat, 13 Sep 2008 07:42:28 +0000

Please go to thelegallyinclined.blogspot.com

Without A Trace
(When the rules on Presumption of Death apply)
By Obiter07

Recent tragedies that we read about in headlines such as deaths at sea or a plane crash bring about legal consequences that those left behind have to contend with. Imagine if a loved one disappears without a trace and you cannot find him or her despite all your efforts. The uncertainty brings untold woe to the loved ones of those who are believed to have perished. Unfortunately, if the deaths cannot be established by the recovery of bodies, their families may have to wait years for final closure.

This will be a discussion of the rules on the presumption of death. It is a morbid topic but it is something that has to be contended with, if the unspeakable does happen.

Relevant Periods

It is difficult to see the reason why this length of time was the one chosen by law, but it is an absence of 7 years that will lead to a presumption of death.

“ARTICLE 390. 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 for 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. (n)” (New Civil Code or “NCC”)

The period of waiting for the presumption to arise and succession to be opened can be shortened under the following circumstances:

“ARTICLE 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)” (NCC)

However, for purposes of remarriage, the 7 years are cut down to 4 under Article 41 of the Family Code (“FC”). Thus, one can marry again if the spouse has been absent for 4 consecutive years and the spouse has a well-founded belief that the absent spouse was already dead.

Also, under the same provision, in case of disappearance where there is danger of death under the circumstances set forth in Article 391, an absence of 2 years is sufficient for purposes of remarriage.

But from when do you count a person to be absent? It seems hard to establish but one case says it is from the date when the last news of the absentee is received [JONES, vs. HORTIGUELA G.R. No. 43701. March 6, 1937].

Actions to be taken

For remarriage, one has to institute a summary proceeding for the declaration of death, without prejudice to the reappearance of the absent spouse (Article 41, FC). It seems that one just has to risk it, ending up with two wives or two husbands and possibly worse, two mothers-in-law, at least for one short moment in time.

In all other cases, there is actually no need for an action to establish the presumption of death.

“In In Re Szatraw, the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.” [MANUEL vs. PEOPLE, G.R. No. 165842. November 29, 2005.]

But there may be a need to secure a declaration of absence when there are properties of the absentee that have to be administered, when the spouse is asking for a separation of property, or for administration of the marriage properties. There is no need to do so if the absentee has no properties. [Herrera, Remedial Law (1996) Vol. III-A, pp. 367-368]. The appointment of a representative for the absentee is governed by Rule 107 of the Rules of Court:

“Sec. 1. Appointment of representative. – When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Court of First Instance of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. xxx”

Actions to be taken upon reappearance

The Family Code does further provide that the recording of the affidavit of reappearance of the absent spouse automatically terminates the subsequent marriage. Article 42 reads:

“ARTICLE 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n)”

If a spouse has been absent that long, one would suppose he would have no interest to record his reappearance via affidavit. However, there are consequences if he does show himself “formally” again.

“ARTICLE 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n)”

Those who resurrect themselves after being thought dead also come into certain rights. Reappearance or proof that one is still alive entitles him to recover his property, the price of such property if it has been sold and any property acquired through his resources but he foregoes the fruits or rents thereof.

“ARTICLE 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194)”

And the absentee appears to have what sounds like a philosophical duty to prove his very existence so he can protect his rights.

“ARTICLE 393. Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. (195)”

If he is an heir, an absentee loses his rights to the estate to his co-heirs unless he has his own successors who can step into his shoes.

“ARTICLE 394. Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (196a)”

Upon his comeback, however, the absentee can claim his inheritance rights.

“ARTICLE 395. The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. (197)”

Actual Cases

It in interesting to see where the presumption of death has actually been made or put in issue in local cases. This has been invoked in a case where a family was trapped in building during the Battle for Manila which was set afire by the Japanese, where the patron of a vessel on a fishing trip jumped from the sinking boat and was last seen swimming but never heard from by his family, where three bombs were thrown at a vinta and its occupants who were never seen again or where persons had been arrested, tortured and thereafter disappeared (this sounds very familiar). [Ibid, pp. 442-444]

The foregoing does cover peculiar circumstances, and it can almost be like having a wake that lasts for years and years. It is a situation we would not wish on anyone. While some may argue against the length of time that one has to wait before the presumption kicks in, the law does seek to provide legal closure when it really seems clear that someone is never coming back.