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LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 13 July 2008 Issue

Being the only predominantly Catholic country in Asia, the Philippines does not have a “no-fault” and ‘uncontested’ divorce to put a formal end to marital relationships, in the same way that is recognized in many legal regimes in the western world, particularly in countries like the United States and Australia.

To make sure that this state policy is not transgressed by legislation, the country’s fundamental law made explicit that marriage is an inviolable social institution and the foundation of the Filipino family which should be protected by the State.

But it does not mean that in this country spouses cannot terminate their marital bond before the death of either of them. They can certainly contest the validity of their marriage based on the legal grounds provided for by the Family Code through a protracted litigation. And one of the most usual grounds invoked to have a marriage declared a nullity by the court is the so-called ‘psychological incapacity’ of one of the spouses.

The psychological incapacity here as defined by law and jurisprudence relates to the inability (and not mere refusal) of the guilty spouse to assume the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and support brought about by some mental (not physical) conditions that already existed at the time of marriage. It is also required that the mental disorder is serious and incurable.

They say that the legislative intent for including such a ground is to harmonize civil law with canon law of the Catholic faith, which similarly recognize psychological incapacity as a basis to terminate church marriages.

Perhaps, the legal set up is fine. It is logical to provide a legal escape to a spouse who suffers, and continues to suffer, in the hands of a spouse with grave and incurable mental disorder. In the end, no amount of a legal provision can dictate what would make a good, happy and successful family life, except the individual resolve of the members of the family, principally the husband and the wife, even if conditions of psychological incapacity actually exist.

But the same legal set up also provide a convenient legal excuse. Psychologist and law educatee Marah Sharyn M. de Castro asked – if the guilty spouse is judicially declared psychologically incapacitated so as to render the marriage null and void, how come he or she is still allowed by law to re-marry? Obviously, if the degree of mental unfitness required by law is serious and incurable, the same cannot be remedied by having another lovelife. For this, they should be disqualified to remarry as a social deterrent for a continuing breakdown in the family as a social institution, or at least there must be a legal system to re-qualify them into entering another marital life. After all, the judicial determination should be binding before the whole world, in legal parlance.

While it is axiomatic in Philippine law and jurisprudence that termination of marriage cannot be the subject of stipulation and agreement of the parties, this is more apparent than real because all the offending spouse needs to do is not to put up a legal fight. At the end of the day, the guilty spouse still benefits from the proceedings by just being silent, especially if there is contemplation of having another relationship. It is not even impossible to feign his or her psychological incapacity.

If the country wants to sustain its avowed national policy of preserving marriages through a legal mechanism, maybe there is a need to re-engineer the concept of ‘psychological incapacity’, either by law or jurisprudence, to make it work in context.

Although law is the state’s response towards the preservation of the family, one thing is sure – only love can make a marriage work. It may not be necessarily the love for each other anymore. Oftentimes, the love of parents of their children is worth the sacrifice if only to breed the next generation of a good and successful family.

On 3 June 2008, the Supreme Court promulgated a resolution in Bar Matter 1922 requiring all lawyers to indicate the number and date of issue of their MCLE certificate of compliance or exemption in pleadings (as well as motions) filed in courts and quasi-judicial bodies. MCLE stands for the Mandatory Continuing Legal Education program of the Supreme Court for the members of the Philippine legal profession.

Failure to disclose may result in the dismissal of the case and the expunction of the pleadings from the records.

The full text of the resolution, which becomes effective sixty days following its publication (or on 24 August 2008), may be viewed HERE.

This prayer was composed and is being offered for the bar candidates of Project Phoenix of the Arellano University School of Law. 

Lord, thank you for the opportunity of gathering us together in Project Phoenix.
We know that this is not a matter of coincidence.
You chose this moment for a particular reason.
And that is the fact that we are destined to become a full-pledged member of the Bar by this time next year.

We thank you for uplifting our spirit.
We thank you for giving us the right attitude to face every adversity as we prepare for the bar examinations.
We thank you for our good state of physical well being.
We thank you for the sound knowledge of law and jurisprudence.
We thank you for the enlightenment and the gift of expression.
And most of all we thank you for all the blessings knowing fully well that there are more less-privileged in our midst.

Rest assured our dearest Lord that whatever human triumph we reap, we will always offer, dedicate and uplift it in Your Name and for Your Greater Glory. Amen.

LINK: ‘Note Verbale’, Manila Times (Sunday-Career Times) – 17 February 2008 Issue

In October 1918, former Manila Mayor Justo Lukban, with all the best intentions to rid the city of vices, ordered the segregation of some one hundred seventy women of ill repute and made them board two steamers, without their knowledge and consent, so they could be relocated to Davao.

In a habeas corpus petition, the Supreme Court did not “permit a government of the men instead of a government of laws” to be set up in this country. And this was the gist of the landmark case of Villavicencio vs. Lukban decided almost ninety years ago.

In the present state of political turmoil brought about by accusations of corruption involving high officials in government both the accused and their accusers cry for the rule of law, not trial by publicity and subsequently conviction by public opinion.

As citizens of this Republic, shenanigans in government are also entitled to the mantle of protection of the Bill of Rights. And this is what the rule of law is all about because like any malefactor, they are also presumed innocent until proven guilty in a court of law.

In refusing to testify again before the Senate Blue Ribbon Committee on the controversial ZTE-NBN deal, Secretary Romulo Neri publicly invokes the rule of law especially after the Supreme Court granted him a reprieve from arrest. For his part, former Commission on Elections Chairman Benjamin Abalos challenged his accusers to hail him before the courts and prove their accusations. Critics of whistle-blowers and star witnesses, Rodolfo Lozada Jr. and Jose de Venecia III contend that no evidence has been presented thus far sufficient to convict those involved in the anomalous transaction.  Every one knows that a criminal conviction requires proof beyond reasonable doubt. Again, this is what the rule of law is all about.

Obviously, these legal standards have found their way in the country’s Bill of Rights and legal system because they are intended to safeguard individual liberties, particularly of ordinary citizens, from the enormous powers of the State. In the same token, public officials and employees proclaimed as servants of the people are entitled to the same mantle of protection.

The dilemma is ordinary folks are not similarly situated as public functionaries although they enjoy equal protection in the eyes of the law.

The rights of ordinary citizens to the secrecy of bank deposits or against any intrusion on privacy like wire-tapping or to invoke privilege communications in certain cases or not to be bound by certain evidences that are part of the ‘poisonous tree’, so to speak, are part of the processes to guarantee individual freedom, which the government could easily abuse.

But it is in a sense an irony of the rule of law if the same legal standards, system and processes are equally applied to public servants because the chance of getting them caught and convicted of their misdeeds becomes a mere fairy tale depending on the scale of the conspiracy and the level of official position they occupy. Sheer cover up, the ‘old-boys’ club’ attitude, and plain blind loyalties and obedience to powerful and influential men in government would make it almost impossible to convict government felons of grand corruption beyond reasonable doubt. And so they remain scot-free and continue to perpetuate themselves in power.

Thus, the rule of law intended to guarantee the rights of Juan de la Cruz could be the same rule of law that gives unscrupulous public officials the cloak of legal protection, perhaps just a strand short of immunity from legal prosecution.

It is easy to understand why a high position in government is a most coveted job. It is the easiest route to power, fame and wealth without the usual investment, except whom you know coupled with the willingness to cooperate.

In the Villavicencio case, the Supreme Court said that “Law defines power”. It was certainly decreed in 1919 in the context that this country is a government of laws and not of men. But nowadays the same statement could assume another import, in the negative sense.

Is there any other viable alternative to the bar of public opinion in a situation called the misrule of law?

A person in contemplation of death may execute his own will, without need of lawyer’s assistance and the other formalities of a testament provided it is entirely written, dated and signed by the hand of the testator himself [Art. 810]. Under the Civil Code of the Philippines (R. A. 386 - approved: 18 June 1949), this is known as ‘holographic will’. It is subject to no other form, may be made in or out of the Philippines, and need not be witnessed.

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 27 January 2008 Issue

The congressional proceedings on the cheaper medicine bill are in the final stages. The deliberations on the measure have been controversial, if not emotional, among the stakeholders since last year. The primary objective of the proposed law is to address the popular clamor for a more affordable health care by bringing down the exorbitant costs or the overpricing of medicines in the market.

Understandably, every time government is confronted with a pressing public demand the usual response is to come up with a law to respond or as a political reaction to the issue. Fortunately for the government, the cacophony would subside momentarily. But unfortunately to the public, the predicament almost always remains unresolved. Ironically, the law in many situations consequently aggravates the issue or becomes the source of a much bigger concern.

One of the promises of the proponents of the Generics Act of 1988 was to accomplish almost the same purpose as the cheaper medicine bill. Two decades after this law, the Filipino people are still suffering from same much higher prices of medicines.

Ten years ago, Congress passed the Downstream Oil Deregulation Act of 1998. The promise is to ensure a truly competitive market under a regime of fair prices, adequate and continuous supply of environmentally-clean and high-quality petroleum products.  Price control of fuel products, which have been blamed by some quarters for higher prices, became deregulated. But still, fuel prices are unreasonably high and worse, oil companies are accused of predatory pricing under a monopolistic arrangements disguising as deregulation.

Overseas Filipino worker Flor R. Contemplacion was executed in Singapore for the murder of another Filipino domestic helper. In response to the weeks of consistent public protests over the issue and the plight of Filipino workers abroad, former President Fidel V. Ramos pushed for the passage of the Migrant Workers and Overseas Filipinos Act of 1995. The promise was to reform the overseas employment industry, provide better protection to the overseas workers, and pursue a state policy of deregulation. Twelve years after, another law was passed setting aside the deregulation policy and still the victims of illegal recruitment and exploitation continue to grow in number.

In 1989, the Magna Carta for Countryside and Barangay Business Enterprises (Kalakalan 20) was passed by Congress. In 2002, an almost similar law was also enacted called the Barangay Micro Business Enterprises Act. The promise of both statutes is to promote entrepreneurship outside of urban centers by providing a package of tax and credit incentives, simplifying business regulations, and hopefully, to ease poverty and unemployment. Judging from the almost a million Filipinos seeking employment abroad in last couple of years, it is doubtful whether these programs even got off the ground.

Time and time again, government professes that foreign investments are needed to spur economic growth. But even all the packages of government incentives accorded by various laws to foreign investors did not seem to really attract them. Otherwise, this country would not be talking now about poor economic conditions and President Gloria Macapagal-Arroyo would not be breaking her back campaigning to foreign businessmen that the Philippines is an ideal haven for their investments.

Twenty years ago, landless farmers and farm workers were promised a more equitable distribution and ownership of lands through the Comprehensive Agrarian Reform Law of 1988. With the law about to expire in June 30 and Congress talking about its extension, farmers remain poor and locked in a tug-of-war with landowners.

Labor’s demand for higher wages and the turtle pace legislative reaction brought about the Wage Rationalization Act of 1989. But the nagging issue on minimum wage fixing and implementation before the enactment of said law remains.

Other countries should envy the Philippines for having one of the best Government Procurement Reform Act, Code of Conduct and Ethical Standards for Public Officials and Employees, and Anti-Graft and Corrupt Practices Act in the world. But corruption in government is a never-ending story.

And the list of these “false hope statutes” could be never ending.

As in most regimes, government’s stance to public issues is always reactive. Good, if the reaction provides the appropriate and lasting solution. What is worse is if the reaction simply offers a false hope.  

Sometimes it is a source of wonder why government still exists.

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 30 September 2007 Issue

“There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind”, wrote American novelist and playwright, Joseph Heller, in his historical fiction book entitled “Catch-22” published in 1961. 

The book relates the story of a US bomber crew characterized by Captain Joseph Yossarian stationed in the Mediterranean island of Pianosa during the late stages of World War II.

BBC News reported that the book, which already sold more than ten million copies, is one of the significant novels of the 20th century. 

In his book, Heller described that Yossarian sought to be excused from flying suicidal mission. To do so, he must submit an official diagnosis from the flight surgeon that he is unfit due to insanity. But according to army regulations, any sane person would naturally refuse to fly dangerous combat missions. Therefore, by seeking to be excused on grounds of insanity meant that the bomber crew is in fact sane and is fit to fly. But those who willingly accept the mission implicitly demonstrate unfitness because of insanity and should be excused from flying without the need for a medical diagnosis.

In another setting, Yossarian offered marriage to a woman who felt distraught because no man would ever marry a woman like her who is no longer a virgin.  The woman rejected the offer claiming he is crazy for wanting to marry a non-virgin.
 
Both scenes satirically show that sanity is a prerequisite to recognize one’s own insanity.

Catch-22 depicts a paradox in a law, regulation or practice in which one is a victim regardless of the option taken because of a circular dilemma or a self-defeating logic. It creates a situation in which an action has consequences which make it impossible to pursue that action because it puts the person in a double bind or in a ‘chicken and egg situation’.

There’s always a ‘catch’ in day-to-day life. And that’s a practical reality that is difficult to escape from. A person cannot get a job without work experience but cannot get work experience without a job. An author cannot publish his work without an agent but cannot get an agent until his work is published. Schools portray a vital role in students’ reformation and learning and yet would shun students away when they obtain failing grades or commit some delinquencies.

But when Catch-22 widely afflicts public governance, society stinks.

It is axiomatic that corruption is one of the major causes of poverty, yet poverty is also an important element to keep corruption alive. As Manila Times senior reporter Annie Ruth C. Sabangan said in her January 6, 2004 special report: “Corruption became even more ingrained. Every administration’s effort to cure the disease appeared to be just a part of a vicious circle. Worse, the public perception lingers that the ones offering solutions are in fact part of the corruption problem.”

What is paradoxical, tragic or perhaps satirical in the Philippine setting is to see the same chameleons simply switching roles and standing either as accusers or the accused, the oppressor or the victim, depending on the prevailing political scene or social climate.

In one interview, Heller summed up his intentions in writing the novel in this wise: “everyone in my book accuses everyone else of being crazy. Frankly, I think the whole society is nuts - and the question is: What does a sane man do in an insane society?”

In the final chapters of Heller’s book, he said: “anything can be done to you that you can not prevent,” and so the only solution is to entirely break out of the system. Thus, Heller’s hero deserted and fled to Sweden.

No wonder millions of Filipino have opted to leave the country out of dismay.  Unfortunately, the Filipino who would lead the country out of Catch-22 is yet to be heard.

PUBLISHED: ‘Note Verbale’, Manila Times (Sunday-Career Times) – 2 September 2007 Issue

In the current discussions of the Supreme Court on the writ of amparo (a court order to protect the constitutional rights of a person) to compel state agents to look for missing persons in cases of forced disappearances, there is a move to complement this with the legal process so-called writ of habeas data.

In this modern world, personal data are being collected and obtained on persons with impunity from birth to death.  Nowadays, a person is compelled or obligated to divulge information about himself or herself in the course of his or her personal dealings and day-to-day transactions. Application for government records, services, social security, clearances, permits and licenses as well as availing of third party private services like bank deposits, investments, credit cards, cable and utilities, school admission, employment, medical care, professional services, and similar other transactions too many to mention here would require individuals to reveal their personal information and circumstances. And people are not wary of the disclosure because they are either too busy or lazy to discern their repercussions or perhaps there is a prevailing trust on the integrity of the system of data collection.

But what if these data base systems are utilized by unscrupulous persons or entities to perpetuate some malicious or criminal ends? Who would, and what would, protect ordinary individuals from these types of attacks and exploitation of their privacies?

A legal and judicial process referred to as the ‘writ of habeas data’ exists in some countries precisely to address the concern.  Literally, this Latin term habeas data means “you should have the data”.

Although its form varies from country to country, habeas data is generally a legal relief made available to citizens to protect their individual image, privacy, honor, reputation, information self-determination and freedom of information in a judicial proceeding.

They say that this legal relief is of European origin. For instance, Germany, as early as 1977, has the Persönlichkeitsrecht, a law that covers collection, processing and use of personal data collected by public federal and state authorities, as long as there is no state-regulation, and of non-public offices, as long as they process and use data for commercial or professional aims.  In 1981, there was also the 108th Council of Europe Convention on Data Protection that sought to secure individual privacy regarding the automated processing of personal information.

In 1988, Brazil was the first country in the world to implement habeas data as part of its Constitution. Thereafter, other countries followed suit and adopted it also in their respective constitutions: Colombia in 1991, Paraguay in 1992, Peru in 1993, Argentina in 1994 and Ecuador in 1996. 

Spain, a country that constitutionally recognizes the right to privacy, secrecy of communications and data protection, enacted in 1992 the LORTAD or the “Spanish Data Protection Act” that establishes the rights of the citizens to know the personal data contained in computer files with the right to correct or delete false information. The law requires that personal information may only be disclosed to a third party with the consent of the individual.

Many nations in the world that put premium to privacy rights particularly on the disclosure of personal information have caused the creation of a public office referred to as ‘privacy commissioner or ombudsman”.

As early as 2000, when this author wrote his thesis for the National Defense College of the Philippines (NDCP) on the national identification system, he realized the importance of institutionalizing habeas data in the country’s legal system and the creation of a privacy office, and made them as part of his recommendation.

So the next time someone is kidnapped for ransom or becomes a target of nuisance marketing or a victim of harassment, vexation or even a simple annoyance, the immoral and unethical exploitation and use of personal database systems could easily be identified as the root cause. Meanwhile, it is still perfectly legal to do so.

If the Filipino cannot find immediate refuge from Congress to protect their constitutional right to privacy, perhaps the Supreme Court through its rule-making power could provide the appropriate legal and judicial relief.

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 29 July 2007 Issue

Republic Act No. 9372 entitled “An Act to Secure the State and Our People from Terrorism” took effect on July 15, 2007. It is government’s statutory response to the global fight against terrorism. The law is also known as the Human Security Act of 2007.

As defined, the crime of terrorism, or conspiracy to commit terrorism, takes place when (1) any person or group of persons sows and creates a condition of widespread and extraordinary fear and panic among the populace, (2) for the purpose of coercing government to give in to an unlawful demand, and (3) through the commission of the following felonies already punishable under the country’s penal statutes, namely: (a) piracy, (b) rebellion or insurrection, (c) coup d’etat, (d) murder, (e) kidnapping, (f) crimes involving destruction, (g) arson, (h) hijacking, (i) highway robbery, (j) unlawful dealing and use of hazardous and nuclear wastes, (k) unlawful dealing of atomic energy materials or facilities, and (l) illegal possession and disposition of firearms, ammunitions and explosives.

The law also provides that upon application of the Department of Justice, a Regional Trial Court, after hearing, may declare a group or association of persons as a terrorist or outlawed organization if it is organized for the purpose of committing terrorism or actually commit such acts as defined.

It is obvious that to establish a conviction for terrorism, a person or group of persons who carried out or planned the attack must openly press an illegitimate demand from the government. From this view, those behind the September 11, 2001 attack of the World Trade Center in New York City, or those who perpetrated the December 30, 2000 Rizal Day Bombings or the October 1, 2005 Bali suicide bombings in Indonesia could escape conviction under the law if prosecuted in Philippine courts because there were actually no demands raised to the government when they carried out their despicable acts. In fact, most terrorist plots are normally undertaken without warning, without the usual ‘do this or that or else’.

It seems that it would even be difficult under the law for Philippine courts to declare as a terrorist organization publicly known terrorist networks like al-Qaeda unless its leaders openly make or express an unlawful demand from the government.

But if a group of Filipino reformists take up arms against the government through rebellion or a military coup to pursue a government take-over, they would easily fall within the purview of a terrorist tag. The same is true for a disgruntled hostage taker who vents his ire on the government.

But what if the demand is legitimate like to get rid of corruption in the bureaucracy? Or what if the Abu Sayyaf commits kidnapping and seeks ransom from the victims’ families and not from the government? While there is no doubt that the group could be convicted of existing crimes like rebellion or coup d’etat or kidnapping, there is no certainty that a prosecution for terrorism would succeed if the requisite ‘unlawful demand from the government’ is not present.

Ironically, the real terrorists which the law seeks to punish have a legal justification for not falling within the penal definition of terrorism but persons or group of persons who should only be punished as ordinary criminals could easily be prosecuted as terrorists under the law.

The other focal issue in this definition is what constitutes widespread or extraordinary fear and panic? Does it include a local situation hugging national attention? It appears that this is really a matter which jurisprudence has to define in future prosecutions.

In the meantime, the law provides a penalty of half a million pesos each day of detention against the state for every unproven charge of terrorism and, after the arraignment of the accused, prosecution for terrorism bars another prosecution for the particular offense committed in violation of the penal code. Real terrorists then who should have been punished for committing ordinary crimes may remain scot-free under the anti-terror law.  Worst, they could be handsomely rewarded for committing the act.

Is the Human Security Act then a good law, a farce or a tragedy?

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 22 July 2007 Issue

Tomorrow, the 14th Congress of the Philippines begins its regular session with the State of the Nation Address of the President. 

Thereafter, both the Senate and the House of Representatives are expected to pass legislations that would address the pressing needs of the country or perhaps improve the lives of the Filipino people.

Hopefully in the next three years of the 14th Congress, it enacts legislative measures along these lines:

1.  A enabling law that would finally define, prohibit and dismantle political dynasties in the country’s political environment as mandated by the Constitution.

2.  A law that would strengthen political parties by prohibiting and punishing political turncoats, granting state subsidy and funding of major political blocks, and assuring transparency in electoral campaign spending and contribution.

3.  A law that would at least lessen, if not eliminate, red tape in government particularly in the delivery of frontline public services whereby the general public availing of the services of government is treated as kings and queens by the bureaucracy.

4. A law that would define the appropriate land use classification of every piece of the country’s territory taking into account local and regional profiles and settings and make land as a real engine for economic growth.

5. A law that would impose heavy taxation on idle lands to serve the ends of the economy, the environment and social justice. When land is unproductive, its economic and environmental functions are stifled. What is worse is when landowners derive undue profits from their idle possessions through sheer speculative activities.

6.  A law that would grant the Commission on Human Rights and the Commission on Audit quasi-judicial powers or even the authority to prosecute all cases involving government officials and employees that violate laws within their ambit.

7.  A law that would exempt from income taxation employees earning below the yearly poverty threshold as determined by the National Economic and Development Authority (NEDA), and not merely based on existing minimum wage structures as proposed, and lift taxes or prohibit imposition of charges on small time deposits and investments.

8. A law that would ensure prosecution of tax cheats by prohibiting taxpayers from entering into a compromise with the Bureau of Internal Revenue or the Bureau of Customs after deliberately evading the payment of taxes or duties.
9. A law that would automatically give scholarship to any or all students who demonstrated excellent academic performance in any school of their choice within the Philippines, private or public. 

10. A law that would support, finance, subsidize, or give incentives to Filipino inventors and their inventions.

Of course, this list can go on and on as if there is a shortage of laws in this country.  But the truth is there are tens of thousand of law in the country’s statute books. Many of them are in fact good laws which have long been forgotten or rarely being implemented.

Keen political observers in fact would often say that this country does not need more laws.  What it needs is the difficult task of better and more effective means of demanding obedience to existing laws.

Perhaps, one of the important things that this present Congress should also do is to take an inventory of all the laws of the Republic and start proceeding with the tedious task of codifying them for better implementation.

What Greek philosopher Arcesilaus observed as early as before the birth of Christ, when he said: “Where you find the laws most numerous, there you will find also the greatest injustice” should also provoke the thoughts of Filipino solons. 

It is hoped that the people of this beautiful country still finds sense in the existence of Congress.