Thursday, October 10, 2013

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (23): Typography and visual design for pleadings, motions, court and other legal documents

Jump to: Efficient Use of Paper Rule A.M. No. 11-9-4-SC; Save forests, use Plain English; Proposed Rules on E-Filing A. M. 10-3-7-SC; Typography in briefs and other papers, from US 7th Circuit Court of Appeals; US SEC design guidelines; How to create a PDF
[1] “Typography for Lawyers, Essential Tools for Polished and Persuasive Documents” by Matthew Butterick (California-based lawyer; graduated magna cum laude from Harvard University in visual and environmental studies; designed fonts for Apple and Microsoft; awarded the Legal Writing Institute’s 2012 Golden Pen Award)
Good typography is part of good lawyering.

Good typography reinforces the goals of the text.

Any lawyer can master the essentials of good typography.

Typography in legal documents should be held to the same standards as any professionally published material.

Some of Butterick’s recommendations for typography in legal documents:
  • Point size should be 10-12 points in printed documents, 15-25 pixels on the web.
  • Never use Times New Roman and Arial.
  • Line spacing should be 120-145% of the point size. In word processors, use the “Exact” line-spacing option to achieve this. The default single-line option is too tight; the 1½-line option is too loose.
  • The average line length should be 45-90 characters (including spaces).
Butterick’s view on point size for pleadings, motions, and court documents:
While courts often require text to be set at 12 point—and sometimes larger—it’s not the most comfortable size for reading. If you compare a court filing with the average book, newspaper, or magazine, you’ll notice that the text in the filing is larger.

When you’re not bound by court rules, don’t treat 12 point as the minimum. Try sizes down to 10 point, including intermediate sizes like 10.5 and 11.5 point—half-point differences are meaningful at these sizes.
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[2] “Best Dressed Briefs - Why Appearance Matters by Susan Hanley Duncan, University of Louisville Louis D. Brandeis School of Law
US Supreme Court’s clerk accepts only documents using fonts in the Century family and refuses to accept filings of any brief printed in Times New Roman.
[3] “Pay Attention to the Aesthetics of Your Pages by Bryan A. Garner (Michigan Bar Journal, March 2010)
Yet the legal profession is still largely unaware of how important page layout can be. On the whole, we're still stuck in the ugly typewriting mode: we still tend to rely on all-caps text and underlining as means of emphasis. Professional typographers I've spoken with are bewildered by our naiveté about the importance of not just what words appear on the page, but how they appear.
[4] “Requirements and Suggestions for Typography in Briefs and Other Papers” from US 7th Circuit Court of Appeals
Use typefaces that were designed for books. Both the Supreme Court and the Solicitor General use Century.
Any face with the word “book” in its name is likely to be good for legal work. Baskerville, Bembo, Caslon, Deepdene, Galliard, Jenson, Minion, Palatino, Pontifex, Stone Serif, Trump Medieval, and Utopia are among other faces designed for use in books and thus suitable for brief-length presentations.
Use italics, not underlining, for case names and emphasis.
Use real typographic quotes (“and”) and real apostrophes (’), not foot and inch marks. Reserve straight ticks for feet, inches, and minutes of arc.
Put only one space after punctuation. The typewriter convention of two spaces is for monospaced type only.
Do not justify your text unless you hyphenate it too. Indent the first line of each paragraph 1/4 inch or less. Big indents disrupt the flow of text.
Cut down on long footnotes and long block quotes.
Avoid bold type. It is hard to read and almost never necessary. Use italics instead.
Avoid setting text in all caps.
Another way to improve the attractiveness and readability of your brief or motion is to emulate high-quality legal typography. The opinions of the Supreme Court, and the briefs of the Solicitor General, are excellent models of type usage.
[5] US Securities and Exchange Commission “Plain English Handbook” design guidelines
A plain English document reflects thoughtful design choices. The right design choices make a document easier to read and its information easier to understand. The wrong design choices can make even a well-written document fail to communicate.
Typography (do not use all caps; use serif typefaces; mixing two serif or two sans serif typefaces can look like a mistake; do not use more than two typefaces in any document, not including the bold or italic versions of a typeface.)
Layout (flush left, ragged right; short line length; short paragraphs; vertical lists; white space)

Before and After example from SEC handbook (click the graphic to see the enlarged view)

[6] “Document Design: Pretty in Print- Part I” by Judge Gerald Lebovits (faculty member of Columbia University - Law School, Fordham University School of Law, and New York University School of Law)
Document design, or typography, refers to the visual component of a word: typeface, type size, white space, margins, alignment, horizontal and vertical spacing, headings, footnotes, endnotes, superscript, straight and curly quotes, boldface, italics, and underlining.
Without effective, legible typography, the reader won't appreciate a document's content. When you have a choice, make the document accessible, comprehensible, persuasive, and professional.
[7] “Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents” by Ruth Anne Robbins, Associate Professor of Law, Rutgers School of Law, Camden.
Persuasion includes looking good on paper — literally. Persuasion is the backbone of a lawyer’s job. Attorneys who are able to appeal to their audience will establish a measure of credibility, ethos, that will enhance the overall effectiveness of the argument. Lawyers are taught to use every part of a document as an opportunity to persuade. Textual design of the document should be approached with the same attitude, i.e., how can it help the lawyer persuade an audience?
Prof. Robbins on point size and court rules:
her legal There is no definitive scientific answer, however, to whether court rules should require 12-point or 14-point font, given a page that is 8.5 inches by 11 inches. The studies unfortunately did not test the relative legibility of font sizes using lines of text closer to what normally appears on the standard paper size used for most legal documents. There is some discussion that larger font sizes such as 14-point Roman cause longer fixation pauses, which in turn slows reading. Dr. Tinker took care to caution that there was no easy way to draw a final conclusion as to optimal type size because other factors contribute to the equation, such as line length and line spacing. Nevertheless, experts in the field recommend reserving 14-point and larger sizes for headings as opposed to blocks of text. (page 122)
On line length:
The optimal line length depends on the size of the type. Unfortunately, the standard 6.5 inches of 12-point type in common use, that is, one-inch margins on the left and right sides of an 8.5-inch-wide page, decreases legibility by more than 3%. Based on those studies, more modern publications claim that the ideal line length for 12-point type should range from 2.75 to 4 inches. Modern examples of text using narrow columns for printing include newspapers and online legal research documents from Lexis/Nexis or Westlaw. (pages 122-123)
Prof. Robbins includes in her study the typographic requirements of various US courts.


“Efficient Use of Paper Rule” A.M. No. 11-9-4-SC

The Supreme Court’s “Efficient Use of Paper Rule” became effective as of January 1, 2013. Covered by the Rule are pleadings, motions, and similar papers; all decisions, resolutions, and orders issued by courts and by quasi-judicial bodies under the administrative supervision of the Supreme Court; reports submitted to the courts, and transcripts of stenographic notes. (Please read also A.M. No. 10-3-7-SC Proposed Rules on E-Filing.)

The Rule requires all pleadings and court documents to be written in:
  • single space with a one-and- a-half space between paragraphs,
  • using an easily readable font style of the party's choice,
  • of 14-size font, and
  • on a 13-inch by 8.5-inch white bond paper.
The Rule also requires a left hand margin of 1.5 inches from the edge; an upper margin of 1.2 inches from the edge; a right hand margin of 1.0 inch from the edge; and a lower margin of 1.0 inch from the edge.

The Supreme Court justifies the Rule by the following reasons:

(1) To produce 500 reams of paper, twenty trees are cut and 100,000 liters of water are used, water that is no longer reusable because it is laden with chemicals and is just released to the environment to poison our rivers and seas;

2) The judicial system needs to cut the use of excessive quantities of costly paper, save our forests, avoid landslides, and mitigate the worsening effects of climate change that the world is experiencing;

(3) The judiciary can play a big part in saving our trees, conserving precious water, and helping mother earth.

Save forests, use Plain English

“In 1992, the Sierra Club estimated that the average California lawyer used a ton of paper each year, a hefty pile indeed in a state that had about 137,000 lawyers. The environmental group urged the state’s Judicial Council to enact a rule requiring use of recycled paper in documents filed in the courts, a move that the group estimated would save more than 6,000 trees annually.

“Two days later, a Los Angeles Times reader penned a letter-to-the-editor with a one-sentence solution of his own. ‘If the Sierra Club would like to save whole forests rather than just a few thousand trees,’ he wrote, ‘I suggest that they encourage lawyers to use plain English.’”

“The letter writer was David Mellinkoff, professor emeritus at the UCLA School of Law and the acknowledged dean of the legal profession’s Plain English movement.”

Source: “Legal Writing: Sense and Nonsense” by Douglas E. Abrams, Associate Professor, University of Missouri School of Law


Proposed Rules on E-Filing A.M. No. 10-3-7-SC: Guidelines on Submission and Processing of Soft Copies of Supreme Court-Bound Papers Pursuant to the Efficient Use of Paper Rule

(1) Soft copies of all Supreme Court-bound papers and their annexes must be submitted simultaneously with the hard copy if by compact disc (CD) or within twenty-four (24) hours from the filing of the hard copy if by e-mail. It must be understood, however, that the paper shall be deemed to have been filed on the date and time of filing of the hard copy and not the soft copy.

(2) The soft copies must be in PDF and individually saved, as well as individually attached to the e-mail, if applicable. The file name of the soft copy must be the same as the document title. Examples: Petition for Review should have a file name "Petition for Review.pdf" Annex A should have a file name "Annex A. pdf"

(3) Soft copies submitted by e-mail must be addressed to the appropriate docketing office:

Case Type Docketing Office E-mail Address (please verify)


Judicial cases Judicial Records Office (JRO) efilejro@sc.judiciary.gov.ph
Administrative
complaints
against personnel of the SC and its decentralized units (e.g., OCA, PHILJA, JBC,
MCLEO)
Office of Administrative Services, SC (OAS-SC) efile_oas_sc@sc.judiciary.gov.ph
Administrative complaints and
matters involving the Court of
Appeals, Sandiganbayan,
Court of Tax Appeals and lower courts, its justices, judges and personnel

Documentation Division, Legal Office, OCA efile_oca@sc.judiciary.gov.ph
Administrative
matters
involving the SC
and its
decentralized
units
Office of the Clerk of Court En Banc efile_occeb@sc.judiciary.gov.ph
Complaints against lawyers
and other bar matters
Office of the Bar Confidant (OBC) efile_bar@sc.jucliciary.gov.ph
(4) The above docketing offices have the primary responsibility of ensuring that all Supreme Court-bound papers have the corresponding soft copies. They shall also be responsible for the safekeeping and archiving of the CDs.

(5) The e-mail shall use the following format:



(6) A CD or an e-mail shall contain only electronic documents pertaining to one case. In the same manner, all soft copies of Supreme Court-bound papers and their annexes pertaining to the same case shall be saved in one CD or attached to one e-mail. In case the total file size of the electronic documents exceeds the maximum size of the CD or the maximum size allowed for uploading by the e-mail service being used by the filer, the electronic documents may be saved in different CDs or e-mailed in batches, but must be clearly marked and/or follow the format prescribed above.

(7) The filer shall also attach to the CD or the e-mail a verified declaration that the pleading and annexes submitted electronically are complete and true copies of the printed document and annexes filed with the Supreme Court. The declaration shall use the following format:



The declaration attached to the CD must be original, while the declaration attached to the e-mail must be in PDF.


How to create a PDF; use a scanner to turn your paper documents to PDF

The Proposed Rules on (paperless) E-Filing require lawyers to submit their pleadings to the Supreme Court in PDF format. PDF stands for “Portable Document Format.” Adobe Acrobat is the standard for creating PDFs (where you can sign your documents online) but it is expensive.

A cheaper alternative is to use a scanner to turn your paper document to PDF. Late-model printers from HP, Brother, Epson, etc. have scanners bundled with them. (If you only have a generic scanner, you can download free software.) Here are the steps:

[1] After preparing your documents in your word processor (MS Word, Libre Office, etc.), print them out. Sign the documents and have them notarized.

[2] Scan your documents page by page; if you have voluminous documents, scanning them will be a tedious process.

You can monitor on your computer screen the scanning progress. Be careful with choosing the scanning type. If you choose a very high resolution, your PDF file will be extremely large. (If you are using Yahoo Mail, it has a limit of 25 megabytes for attachments.)

Save your documents as PDF to an appropriate folder.

[3] Burn your PDFs into a CD. Or attach them to your email.

Resources: 

How do I scan to PDF? (University of Cambridge, Faculty of Law)

Scanning Directly to a PDF File – Epson

How to Scan a Document to PDF | eHow

Advanced Scan to PDF Free - CNET Download.com

Tuesday, October 08, 2013

Illegal drugs: if chain of custody is broken, accused must be acquitted

Plain Language summary:

Case title:People of the Philippines vs. Nicolas Gutierrez” G.R. No. 179213, September 3, 2009

Ruling: The prosecution failed to prove under the “chain of custody” rule that the shabu allegedly seized from the accused by the police officers was the same shabu presented in court. The accused must therefore be acquitted.

Definitions:

(1) “Corpus delicti”: substance of the crime that proves a crime has actually been committed. In cases involving illegal drugs, the illegal drug itself is the corpus delicti. Its existence is vital for the court to find the accused beyond reasonable doubt.

(2) “Chain of custody” rule: there must be testimony about every link in the chain, from the moment the object seized was picked up to the time it is offered in evidence.

Every person who touched the object must describe
  • how and from whom it was received, where it was, and what happened to it while in the witness's possession,

  • the condition in which it was received, and

  • the condition in which it was delivered to the next link in the chain.
References, links, relevant laws:

Mallillin v. People” G.R. No. 172953, April 30, 2008 (Supreme Court requirements in proving chain of custody)

Section 1 (b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002 which implements R.A. No. 9165 (definition of "chain of custody")
Background facts:

[1] A police team arrested Nicolas Gutierrez during a buy-bust operation on June 16, 2003 in Pasig City. The team allegedly seized from Gutierrez five centigrams of methylamphetamine hydrochloride (“shabu”) and drug paraphernalia.

Gutierrez was charged under R.A. 9165 with illegal sale of shabu and illegal possession of paraphernalia.

[2] Gutierrez pleaded “not guilty” during his arraignment. He claimed that he was merely having dinner with his family when four unidentified armed men barged into his house and arrested him.

[3] During the pre-trial, Gutierrez’s lawyer stipulated that:
a. the specimen (alleged shabu) exists,
b. the arresting officers requested for its examination,
c. a forensic chemist examined the specimen, and
d. it tested positive for methyl amphetamine hydrochloride.

[4] During the hearing, the fiscal presented some of the police officers who arrested Gutierrez. The officers identified the buy-bust money paid to Gutierrez and the shabu bought from him. PO1 Espares testified on the marking and eventual turnover of the seized sachet of alleged shabu to the investigator.

[5] The Pasig City Regional Trial Court found Gutierrez guilty of the illegal sale of shabu. But the RTC acquitted him of the charge of illegal possession of paraphernalia.

Gutierrez questioned the RTC’s ruling before the Court of Appeals. The CA affirmed the RTC’s decision. Gutierrez then brought his case up to the Supreme Court.

Issue:

The prosecution failed to show what happened to the shabu from the time the arresting officers gave it to the investigator up to its turnover for laboratory examination. The case records also do not show what happened to the shabu between its turnover by the chemist to the investigator and its presentation in court. Since the prosecution failed to prove that the shabu allegedly seized from Gutierrez was the same shabu presented in court, should Gutierrez be acquitted?

Supreme Court ruling:

Gutierrez should be acquitted because the prosecution failed to show an unbroken chain of custody of the alleged shabu.

Under Section 5, Article II of R.A. No. 9165, the elements necessary in a prosecution for the illegal sale of shabu are:
  • the identity of the buyer and the seller;
  • the object and the consideration; and
  • the delivery of the thing sold and the payment for it.
The prosecution must prove that the sale of shabu took place. The corpus delicti— the body or substance of the crime which establishes the fact that acrime has actually been committed—must also be presented in court. In cases involving narcotics, the illegal drug itself constitutes the corpus delicti of the offense. The existence of the illegal drug is vital for the court to find the accused guilty beyond reasonable doubt. The “chain of custody” rule ensures that unnecessary doubts on the identity of the evidence are removed.

In “Malillin v. People,” the Supreme Court explained how it expects the chain of custody or “movement” of the seized evidence to be maintained. There must be testimony about every link in the chain, from the moment the object seized was picked up to the time it is offered in evidence. Every person who touched the object must describe
  • how and from whom it was received, where it was, and what happened to it
    while in the witness’s possession,
  • the condition in which it was received, and
  • the condition in which it was delivered to the next link in the chain.
These witnesses must describe the precautions taken to ensure that there had been
1. no change in the condition of the object and
2. no opportunity for someone not in the chain to possess the object.
PO1 Espares, one of the arresting officers, testified on the marking and eventual turnover of the allegedly seized sachet of shabu to the investigator. But no explanation was given on its custody in the interim – from the time it was turned over to the investigator to its turnover for laboratory examination. The case records also do not show what happened to the allegedly seized shabu between the turnover by the chemist to the investigator and its presentation in court.

Highlights of the Supreme Court’s decision / clarifications:

[1] The Supreme Court also ruled that Gutierrez should be acquitted because the arresting officers failed to comply with the rule on the custody and disposition of confiscated drugs (Section 21, Paragraph 1 of Article II of R.A. No. 9165). The officers did not physically inventory and take pictures of the shabu allegedly confiscated from Gutierrez. The officers also did not explain why they did not follow the rule.

[2] “Because of the built-in danger of abuse that a buy-bust operation carries, it is governed by specific procedures on the seizure and custody of drugs.”

“By the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great.”

“Courts must be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses.”

[3] What about the stipulations made by Gutierrez’s lawyer during the pre-trial?

These stipulations have no bearing on the question of chain of custody. The Court said:
These stipulations, which merely affirm the existence of the specimen, and the request for laboratory examination and the results thereof, were entered into during pre-trial only in order to dispense with the testimony of the forensic chemist and abbreviate the proceedings. That such is the intention of the parties is clear from the additional stipulations that the forensic chemist had no personal knowledge as to the source of the alleged specimen; and that the defense was reserving its right to object to the pieces of evidence marked by the prosecution. Clearly, the stipulations do not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left her possession.

To interpret the stipulations as an admission that appellant was the source of the specimen would be to bind him to an unceremonious withdrawal of his plea of not guilty – a reading not supported by the records which creates a dangerous precedent.

Monday, October 07, 2013

600,000+ visitors and counting: Thanks for browsing this blog

I started this blog October 30, 2005 and last Sunday, my website tracker (Sitemeter.com) reported that some 600,000+ visitors from 81 countries have now browsed this site.

The numbers are gratifying for any blogger but they do not really represent the number of people who have actually or beneficially used this blog. We have to consider factors such as bounce rates, time spent on site, number of pages viewed, etc. Also, I use two trackers, Google Analytics and Sitemeter, which work in different ways and thus report different statistics.

The service I provide in this blog and in my Family Matters website (currently offline) is free legal information and Biblical counseling. As I told one person who e-mailed me, what is legal is not always Biblical, and what is Biblical is not always legal. In my website and blogs however, what is Biblical will always take precedence.

Do not depend on “legal information” found in chat rooms or online forums

Despite this milestone for this blog, three things sadden me:


One, I have stumbled upon chat rooms or online forums for OFWs, single parents, etc. and I am amazed at the tremendous amount of misinformation about legal matters I found in these forums. The problem is that people in these chat rooms, rather than inquiring from lawyers, rely on each other and on people who pretend to know the law. It does not matter whether a person has gone to law school or does good research on legal topics. Answering people’s questions about legal matters is considered as “practice of law” (as the Supreme Court ruled in the case involving the late Sen. Rene Cayetano and former COMELEC chairman Christian Monsod). The practice of law is reserved only for those who have passed the bar exams and are in good standing with the Integrated Bar of the Philippines.

text copied from this blog and then posted in a chat room without attributionSome people in chat rooms and online forums also copy and paste from my blog posts without giving any credit. For example, portions of my post “Can nephews and nieces inherit from their grandparents, unmarried aunts or uncles?” were posted verbatim without any attribution in an online forum. (Click the image to the left so you can compare my blog post and what was posted in the forum.)

If you do have legal questions, you should inquire from lawyers directly or from government offices. I have listed in a tab below this blogs title graphic the contact information of government offices where you can get free legal assistance. For example, you can ask for free legal help from the Department of Justice Action Center (DOJAC). It acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try asking for free legal help or information from the following:

  1. Integrated Bar of the Philippines (IBP) chapter offices in your town or city, usually located in the Hall of Justice
  2. OLA (Office of Legal Aid) of the UP College of Law; Room 107, Malcolm Hall, University of the Philippines Diliman, Quezon City, 1101; Tel. No. 927-6260; Trunkline: 920-5514 local 120, 121; Telefax: 920-5514 loc. 106; Office Hours: 8:00 am - 12:00 pm; 1:00 pm - 5:00 pm
  3. Legal Aid Bureau of the San Beda College of Law in Mendiola, Manila
  4. CJ Roberto Concepcion Legal Aid Clinic of the UST Institute of Civil Law, Espana, Manila; contact number: local 8349, direct 732-3045 (main UST trunklines 406-1611)
  5. Sebastinian Office of Legal Aid, San Sebastian College Institute of Law; contact tel. no. 734-8931 local 312
  6. Commission on Human Rights chapter offices
Two, the most visited page of this blog is that on adultery, concubinage, and psychological violence. The other pages with a high number of visits are those dealing with annulment or declaration of nullity of marriage, entertainer Amy Perez’s failed petition to have her marriage to Brix Ferraris declared null and void, and custody battles over children.

Three, there are more people who visit this blog rather than my Salt and Light blog on how to build strong relationships, marriages and families. Compared to this blog, my SL blog is limping along with only 51,000+ visitors since December 2005. It seems that there are more people who want to know about how to end their marriage than people concerned about building stronger marriages.

Salt and Light blog title graphicsI remember Valentine’s Day five years ago. I received an e-mail from a woman, competent and highly successful in her profession. The problem was, her professional success had led to the breakdown of her marriage because her husband had become totally insecure. The question she desperately asked me was, “Is there hope for my marriage?” I spent the whole afternoon of that Valentine’s Day answering the e-mail, assuring her that yes, there was still hope for her marriage.

My hope is that more people will browse my Salt and Light blog and learn how to reclaim their marriage and rebuild their family. Some of my favorite articles are Lessons in love and life from Miriam Quiambao, Emotional word pictures as a communication tool for increasing intimacy between husbands and wives, and Men are terrible mind readers ...



I also hope that that those of you going through various marital difficulties will try to get hold and watch Kirk Cameron's movie on relationships; you can watch the YouTube trailer above.
(Read more About FIREPROOF; surf to the FIREPROOF blog).

About FIREPROOF, the movie
At work, inside burning buildings, Capt. Caleb Holt lives by the old firefighter's adage: Never leave your partner behind. At home, in the cooling embers of his marriage, he lives by his own rules.

Growing up, Catherine Holt always dreamed of marrying a loving, brave firefighter...just like her daddy. Now, after seven years of marriage, Catherine wonders when she stopped being "good enough" for her husband.

Regular arguments over jobs, finances, housework, and outside interests have readied them both to move on to something with more sparks.

As the couple prepares to enter divorce proceedings, Caleb's father challenges his son to commit to a 40-day experiment: "The Love Dare." Wondering if it's even worth the effort, Caleb agrees-for his father's sake more than for his marriage. When Caleb discovers the book's daily challenges are tied into his parents' newfound faith, his already limited interest is further dampened.

While trying to stay true to his promise, Caleb becomes frustrated time and again. He finally asks his father, "How am I supposed to show love to somebody who constantly rejects me?"

When his father explains that this is the love Christ shows to us, Caleb makes a life-changing commitment to love God. And so with God's help he begins to understand what it means to truly love his wife.

But is it too late to fireproof his marriage? His job is to rescue others. Now Caleb Holt is ready to face his toughest job ever...rescuing his wife's heart.

Saturday, October 05, 2013

When someone hits a minor, should the charge be child abuse under RA 7610 or physical injury under the Revised Penal Code?

Plain Language summary:

Case title: Bongalon v. People of the Philippines (G.R. No. 169533, March 20, 2013)

Ruling: Not every instance of laying of hands on a child constitutes the crime of child abuse under Republic Act No. 7610. If the accused intended to debase, degrade or demean the intrinsic worth and dignity of the child as a human being, then the accused can be charged for child abuse. But if that wasn’t the intention, then the accused should be charged under the Revised Penal Code.

Relevant laws and discussions:

Republic Act No. 7610

Duration of penalties

Background facts


[1] On June 26, 2000, the Prosecutor’s Office of Legazpi City charged George Bongalon in the Regional Trial Court with child abuse under Section 10 (a) of Republic Act No. 7610. Bongalon allegedly

(a) struck Jayson de la Cruz, a minor, with his palm hitting Jayson at his back and

(b) slapped Jayson hitting his left cheek.

Jayson’s physical injury required five to seven days of medical attention.

Bongalon also allegedly uttered these derogatory remarks against Jayson’s family: “Mga hayop kamo, para dayo kamo digdi, Iharap mo dito ama mo” (You all animals, you are all strangers here. Bring your father here).

[2] According to Bongalon’s version of the incident, Jayson and his older brother Roldan threw stones at his two minor daughters Mary Ann Rose and Cherrlyn. Jayson also burned Cherrlyn’s hair. Bongalon denied physically abusing or maltreating Jayson.

[3] The RTC found Bongalon guilty as charged and sentenced him to imprisonment of 6 years and 1 day to 8 years of prision mayor in its minimum period.

[4] Bongalon then appealed to the Court of Appeals. He contended that the RTC overlooked or disregarded material facts and circumstances in the records that would have led to a favorable judgment for him. He attacked the lack of credibility of the witnesses presented against him, citing the failure of the complaining brothers to react to the incident, which was unnatural and contrary to human experience.

The CA affirmed the conviction but modified the penalty to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional, as minimum term, to 6 years, 8 months and 1 day of prision mayor as the maximum.

[5] Bongalon brought his case up to the Supreme Court through a petition for certiorari under Rule 65 of the Rules of Court. He claimed that he was not guilty and that, even assuming that he was guilty, his liability should be mitigated because he had merely acted to protect his two minor daughters.

Supreme Court ruling


[1] As the RTC correctly found, Bongalon struck Jayson at the back with his hand and slapped Jayson on the face. But Bongalon’s acts did not constitute child abuse under RA 7610. He did not intend to debase the “intrinsic worth and dignity” of Jayson as a human being. He also did not intend to humiliate or embarrass Jayson.

Instead of child abuse, Bongalon should be convicted of slight physical injuries under Article 266 (1) of the Revised Penal Code.

[2] Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No. 7610, as follows:

Section 3. Definition of terms. –
x x x x

(b) “Child Abuse” refers to the maltreatment, whether habitual or not, of the child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

[3] The records did not establish beyond reasonable doubt that Bongalon intended to debase the “intrinsic worth and dignity” of Jayson as a human being or that he had intended to humiliate or embarrass Jayson. Bongalon acted on the spur of the moment and in anger, being then overwhelmed by his fatherly concern for the personal safety of his minor daughters who had just suffered harm at the hands of Jayson and his older brother Roldan.

[4] The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of imprisonment. Since Bongalon lost his reason and self-control in defending his daughters, he was entitled to the mitigating circumstance of passion. The proper penalty is 10 days imprisonment.

Other highlights of the Supreme Court ruling


[1] Under the well-recognized doctrine of “pro reo,” every doubt is resolved in favor of the accused. Courts should consider all possible circumstances in favor of the accused.

[2] Bongalon used the wrong remedy in questioning the CA’s affirmance of his conviction. His proper remedy was an appeal taken in due course. He should have filed a petition for review on certiorari. Instead, he wrongly brought a petition for certiorari.

Even if Bongalon’s petition is treated as having been brought under Rule 45 of the Rules of Court, it would still be defective due to its being filed beyond the period provided by law. Section 2 of Rule 45 requires the filing of the petition within 15 days from the notice of judgment to be appealed. Bongalo received a copy of the CA’s decision on July 15, 2005, but filed the petition only on September 12, 2005.

Despite Bongalon’s procedural mistakes, the Supreme Court did not dismiss his petition outright but treated it as an appeal filed on time. The Court said that it did not want to be seen as “an unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of procedure.” The Court explained:

“The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing the petition, and instead set ourselves upon the task of resolving the issues posed by the petition on their merits. We cannot fairly and justly ignore his plea about the sentence imposed on him not being commensurate to the wrong he committed. His plea is worthy of another long and hard look. If, on the other hand, we were to outrightly dismiss his plea because of the procedural lapses he has committed, the Court may be seen as an unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of procedure. But the Rules of Court has not been intended to be rigidly enforced at all times. Rather, it has been instituted first and foremost to ensure justice to every litigant. Indeed, its announced objective has been to secure a ‘just, speedy and inexpensive disposition of every action and proceeding.’ This objective will be beyond realization here unless the Rules of Court be given liberal construction and application as the noble ends of justice demand. Thereby, we give primacy to substance over form, which, to a temple of justice and equity like the Court, now becomes the ideal ingredient in the dispensation of justice in the case now awaiting our consideration.

“The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such birthright without due process of law unless we shunt aside the rigidity of the rules of procedure and review his case.”

Friday, October 04, 2013

After getting married, a woman should consistently use either her maiden surname or her married surname

Plain Language summary

Case title:Maria Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs,” G.R. No. 169202, March 5, 2010

Ruling: 

A married woman is not prohibited from continuously using her maiden name once she is married. When a woman marries, she does not change her name but only her civil status.

RA 8239 does not prohibit a married woman from using her maiden name in her passport. The DFA allows a married woman who applies for a passport for the first time to use her maiden name. She is not required to adopt her husband's surname.

But once a married woman uses her married name in her passport, she cannot be allowed to change her family name at will. This prohibition prevents confusion and inconsistency in the records of passport holders.

Relevant laws:

[1] Republic Act No. 8239 or the Philippine Passport Act of 1996

[2] Article 370 of the New Civil Code of the Philippines (law on surnames for married women)

Background facts:


[1] Maria Virginia V. Remo is a Filipino citizen married to Francisco R. Rallonza. The following entries appear in her passport: “Rallonza” as her surname, “Maria Virginia” as her given name, and “Remo” as her middle name.

Virginia’s passport was due to expire on October 27, 2000. She applied for her passport’s renewal with the Department of Foreign Affairs (DFA) office in Chicago, Illinois, USA. She also requested that her maiden name and surname be used in the replacement passport.

[2] The DFA office in Chicago and later on DFA Sec. Domingo Siason denied Virginia’s request.

DFA Sec. Siason, through an undersecretary, stated:

This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husband’s name. Use of maiden name is allowed in passport application only if the married name has not been used in previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce and death of the husband. Ms. Remo’s case does not meet any of these conditions.

[3] Virginia appealed to the Office of the President but her appeal was denied. The OP stated:

Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 “offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport purposes.”

[4] Virginia then filed a petition for review of the OP’s decision with Court of Appeals. The CA denied the petition, stating:

  • Virginia’s marriage to Francisco Rallonza has not been annulled or declared void. A divorce decree has also not been granted to them.
  • Virgina cannot therefore simply revert to her maiden name in the replacement passport after she had adopted her husband’s surname in her old passport.

Virginia subsequently filed a petition for review of the CA’s ruling with the Supreme Court. She claimed that no law prohibits her from using her maiden name and that Section 5(d) of RA 8239 conflicts with Article 370 of the New Civil Code of the Philippines (NCC).

Issue


Should Virginia be allowed to use her maiden surname in the replacement passport?

Supreme Court ruling


[1] “A married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 NCC. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage.”

“A married woman is not prohibited from continuously using her maiden name once she is married. When a woman marries, she does not change her name but only her civil status.”

[2] The law governing passport issuance is RA 8239. Section 5(d) “limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport.” These instances are death of husband, divorce decree, annulment or nullity of marriage.

Article 370 of the Civil Code and Section 5(d) of RA 8239 do not conflict with one another. RA 8239, including its implementing rules and regulations, does not prohibit a married woman from using her maiden name in her passport. In fact, in recognition of this right, the DFA allows a married woman who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her husband's surname.

[3] Virginia “would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport.”

[4] If Virginia’s request to use her maiden surname in the replacement passport is granted, “nothing prevents her in the future from requesting to revert to the use of her husband’s surname.”

“Unjustified changes in one’s name and identity in a passport cannot be allowed. Undue confusion and inconsistency in the records of passport holders will arise.”

For passport issuance purposes, a married woman whose marriage is subsisting, may not change her family name at will.

Thursday, October 03, 2013

Can an employee file a case of constructive dismissal and yet continue reporting for work?

Plain Language summary:

Case title:The Orchard Golf and Country Club vs. Amelia R Francisco,” G.R. No. 178125, March 2013

Issue: How can an employee file a labor case for constructive dismissal and at the same time continue reporting for work?

Ruling: Constructive dismissal does not occur when the employee stops reporting for work, but when the employer commits acts that make continued employment intolerable.

In difficult times, an employee may have no choice but to continue working despite the employer’s abuses and even while a labor case is pending between them. This should not be taken against the employee.

Definition: “Constructive dismissal” is quitting or cessation of work
  • because continued employment is rendered impossible, unreasonable or unlikely;

  • when there is a demotion in rank or a diminution of pay and other benefits;

  • if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment;

  • when the employee involuntary resigns due to the harsh, hostile, and unfavorable conditions set by the employer.
The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his employment/position under the circumstances. (Gan vs. Galderma Philippines, G.R. No. 177167, January 17, 2013)

Background facts


[1] The Orchard Golf and Country Club (Orchard), operates two golf courses in Dasmariñas, Cavite for its members and their guests. Orchard also has a swimming pool, bowling alley, cinema, fitness center, courts for tennis, badminton and basketball, restaurants, and function rooms.

Amelia R. Francisco (Francisco) was employed as Club Accountant to head Orchard’s General Accounting Division and the four divisions under it. Each of these four divisions has its own Supervisor and Assistant Supervisor. As General Accounting Division head, Francisco reported directly to Orchard’s Financial Comptroller, Jose Ernilo P. Famy (Famy).

Tomas B. Clemente III (Clemente) is Orchard’s General Manager while Ma. Irma Corazon A. Nuevo (Nuevo) is the General and Administrative Manager.

[2] Famy’s actions against Francisco:

(a) suspended Francisco without pay for a period of 15 days for her alleged failure to prepare a letter to SGV, Orchard’s internal auditor, despite repeated verbal and written reminders;

(b) temporarily transferred Francisco to the Cost Accounting Section, without diminution in salary and benefits, while Francisco’s charges against him for fraudulent and negligent acts were being investigated;

(c) asked for investigation into Francisco’s insubordination, for her alleged unauthorized change of day-off from July 30 to August 4, 2000, and for being absent on that date despite disapproval of her leave/offset application;

(d) asked Francisco in a memorandum dated August 5, 2000 to explain the charges of insubordination, negligence, inefficiency and violation of work standards relative to the unauthorized change of day-off and disapproved offset/ leave.

[3] Francisco’s reactions:

(a) She accused Famy of waging a personal vendetta against her because she sought Orchard’s inquiry into Famy’s fraudulent and negligent acts. She also said that her transfer to the Cost Accounting Section was humiliating and demeaning, and that it constituted constructive dismissal.

Francisco also threatened to take legal action or seek assistance from Orchard members to insure that Famy’s impropriety was investigated.

(c) On August 11, 2000, Francisco filed a Complaint for illegal dismissal against Orchard, impleading Famy, Clemente and Nuevo as additional respondents. The case was docketed as NLRC Case No. RAB-IV-812780-00-C. She asked, among others, for damages and attorney’s fees.

[4] Events after Francisco filed her illegal dismissal case with the NLRC:

(a) On August 16, 2000, Francisco received another memorandum requiring her to explain why she should not be charged with betrayal of company trust. The memorandum alleged that a club member was seen distributing copies of Francisco’s letter to Orchard’s Chairman of the Board of Directors.

(b) On August 18, 2000, Francisco submitted her written explanation to the charges.

(c) On August 19, 2000, Clemente handed Francisco a Notice of Disciplinary Action dated August 16, 2000 relative to her July 30, 2000 unauthorized change of day-off and her August 4, 2000 unauthorized leave/absence. Francisco was suspended for another fifteen days, or from August 21 to September 6, 2000.

[5] Events after Francisco’s suspension:

(a) Francisco amended her illegal dismissal Complaint to one for illegal suspension. Meanwhile, she continued to report for work.

(b) On September 7, 2000, or a day after serving her suspension, Francisco received a September 6, 2000 memorandum from Nuevo and approved by Clemente. She was placed on forced leave with pay for 30 days, or from September 7, 2000 up to October 11, 2000, allegedly because the case filed against her has strained her relationship with her superiors.

(c) Francisco wrote a letter to Nuevo seeking clarification as to what case was filed against her. Nuevo immediately sent a reply memorandum stating that the case referred to her alleged “betrayal of company trust.”

(d) After the expiration of her forced leave, or on October 12, 2000, Francisco reported back to work.

This time Francisco was handed an October 11, 2000 memorandum from Clemente informing her that she has been permanently transferred, without diminution of benefits, to Orchard’s Cost Accounting Section effective October 12, 2000. The transfer was due to strained relations between her and Famy and the pending evaluation of her betrayal of company trust charge. Francisco’s position at the Cost Accounting Section was to remain under Famy’s direct supervision.

(e) In an October 13, 2000 memorandum to Clemente, Francisco protested her permanent transfer, claiming that it was made in bad faith. She also bewailed Clemente’s inaction on her July 5, 2000 letter charging Famy with irregularities relative to BIR tax payments.

Because of her transfer, Francisco once more amended her Complaint to include illegal/constructive dismissal. In her prayer, she sought to be reinstated to her former position as Club Accountant.

[6] Labor Arbiter rules against Francisco

Labor Arbiter Enrico Angelo C. Portillo issued a Decision dated August 23, 2001 dismissing Francisco’s Complaint for lack of merit. The Arbiter noted the “belligerence and animosity” between Francisco and Famy. He dismissed Francisco’s charges as nothing more than attempts to get back at Famy for his reproach at her failure to draft the SGV letter.

The Arbiter further upheld Francisco’s two suspensions as valid exercises of Orchard’s management prerogative. He also found Francisco’s claim of constructive dismissal to be baseless. On the contrary, he found Francisco’s transfer as necessary and in furtherance of Orchard’s interests. He also noted that the transfer was lateral, or to a position of the same rank and pay scale based on Orchard’s Organizational Chart.

[7] NLRC overrules the Labor Arbiter

While Francisco’s suspensions were valid, her subsequent permanent transfer on the ground of strained relations to the Cost Accounting Section on October 12, 2000 had no just cause. It resulted in Francisco’s demotion, since the position of Cost Controller was merely of a supervisory character while the position of Club Accountant was of managerial rank. Francisco held the rank of “Manager 3” as Club Accountant, while the Cost Controller is only a Supervisor position and is precisely under the direct supervision and control of the Club Accountant. This unwarranted demotion is equivalent to constructive dismissal.

The NLRC added that “strained relationship” is not a valid ground for termination of employment under the Labor Code. It ordered Francisco’s reinstatement to her former position as Club Accountant and awarded her attorney’s fees in the amount of P50,000.00. But the NLRC absolved Famy, Nuevo and Clemente of wrongdoing.

Francisco moved for partial reconsideration of the NLRC’s Resolution with respect to its ruling declaring her suspensions as valid and the denial of her claim for damages. The NLRC denied her motion.

[8] The Court of Appeals affirms NLRC ruling

Orchard went up to the CA through a Petition for Certiorari while Francisco no longer took issue with the denial of her motion.

In its January 25, 2007 Decision, the CA sustained the NLRC ruling. It held that while Orchard had the right to transfer Francisco from one office to another within the club, there should be no demotion in rank, salary, benefits, and other privileges. The CA added that the right may not be used arbitrarily to rid the employer of an undesirable worker. Proper notification and an opportunity to be heard or contest the transfer must be given to the employee whose transfer is sought.

Francisco was notified only of Orchard’s decision to permanently transfer her, without giving her the opportunity to contest the transfer. The CA characterized Francisco’s permanent transfer as a demotion in the guise of a lateral transfer.

Orchard filed a Petition for Review with the Supreme Court questioning the CA’s decision.

Supreme Court ruling: Francisco was constructively dismissed


Francisco’s transfer to the position of Cost Controller was without valid basis and that it amounted to a demotion in rank. Hence, there was constructive dismissal.

The cause of Francisco’s temporary transfer on July 20, 2000 was her pending complaint against Famy.

When Francisco was placed on forced leave and transferred to the Cost Accounting Section, not once was Francisco given the opportunity to contest these company actions taken against her.

Just when one penalty has been served by Francisco, another would instantaneously take its place. And all these happened even while the supposed case against her, the alleged charge of “betrayal of company trust”, was still pending and remained unresolved.

Not even the claim that her relations with her superiors have been strained could justify Francisco’s transfer to Cost Accounting Section. Indeed, it appears that her charge was never resolved. And if Famy, Nuevo and Clemente truly believed that their relations with Francisco have been strained, then it puzzles the Court why, despite her transfer, she continues to remain under Famy’s direct supervision.

For this reason, Francisco’s July 20, 2000 temporary transfer and her October 12, 2000 permanent transfer to Cost Accounting Section must be invalidated. For one, there was no valid reason to temporarily transfer Francisco to Cost Accounting Section on July 20, 2000. She had already served her penalty for her failure to draft the SGV letter, through the 15-day suspension period which she just completed on July 20, 2000. Secondly, the transfer was not even rooted in any new infraction she is accused of committing. There was thus an absolute lack of basis for her July 20, 2000 temporary transfer.

As for her October 12, 2000 permanent transfer, the same is null and void for lack of just cause. Also, the transfer is a penalty imposed on a charge that has not yet been resolved. Definitely, to punish one for an offense that has not been proved is truly unfair; this is deprivation without due process. Finally, the Court sees no necessity for Francisco’s transfer; on the contrary, such transfer is outweighed by the need to secure her office and documents from Famy’s possible intervention on account of the complaint she filed against him.

The fact that Francisco continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver. Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee’s continued employment shall become so intolerable. In these difficult times, an employee may be left with no choice but to continue with his employment despite abuses committed against him by the employer, and even during the pendency of a labor dispute between them. This should not be taken against the employee. Instead, we must share the burden of his plight, ever aware of the precept that necessitous men are not free men.

Wednesday, October 02, 2013

Can a rank-and-file employee like a hotel service attendant be terminated on the ground of loss of trust and confidence?

Plain Language summary:

Case title:Philippine Plaza Holdings, Inc. vs. Ma. Flora M. Episcope,” G.R. No. 192826, Feb. 27, 2013

Issues:

(1) Can a rank-and-file employee like a service attendant be terminated on the ground of loss of trust and confidence?

(2) What are the two classes of positions of trust?

(3) What are the requirements for the ground of loss of trust and confidence?

(4) Is proof beyond reasonable doubt necessary in dismissing an employee on the ground of loss of trust and confidence?

Relevant laws and cases:

Article 293 (formerly Article 279) of the Labor Code

Bristol Myers Squibb (Phils), Inc. v. Baban, citing Atlas Fertilizer Corporation v. National Labor Relations Commission

Lopez v. Alturas Group of Companies

Background facts


[1] Philippine Plaza Holdings, Inc. (PPHI) is the owner and operator of the Westin Philippine Plaza Hotel (Hotel).

Ma. Flora M. Episcope (Episcope) was employed by PPHI from July 24, 1984 until she was terminated on November 4, 2004. Grounds for her termination were dishonesty, willful disobedience, and serious misconduct amounting to loss of trust and confidence.

[2] To check the performance of the employees and the services of the Hotel’s outlets, PPHI regularly employed independent auditors or professional shoppers.

For this purpose, Sycip, Gorres and Velayo auditors dined at the Hotel’s Café Plaza on August 28, 2004. After dining, the auditors were billed the total amount of P2,306.65, representing the cost of the food and drinks they had ordered under Check No. 565938.

[3] Based on the audit report submitted to PPHI, Episcope was one of those who attended to the auditors. She was the one who handed the check and received the payment of P2,400.00. She then returned Check No. 565938, which was stamp marked “paid,” together with the change.

[4] Upon comparing the check receipt with the sales report of Café Plaza, it was discovered that the Hotel’s copy of the receipt had a discount of P906.45. This was due to the use of a Starwood Privilege Discount Card registered in the name of Peter A. Pamintuan. The receipt issued by Episcope to the auditors reflected the undiscounted amount of P2,306.65 since none of the auditors had this discount card.

[5] On September 30, 2004, the Hotel issued a Show-Cause Memo to Episcope asking her to explain why no disciplinary action should be taken against her for the questionable and invalid discount application on the check.

In her handwritten letter, Episcope admitted that she was on duty on the date and time in question. But she could no longer recall if the concerned guests presented a Starwood Privilege Discount Card.

[6] On October 4, 2004, PPHI placed Episcope on preventive suspension without pay.

[7] During the administrative hearing on October 6, 2004, Episcope confirmed that she was the one who presented the check and received the payment from the guests. But she denied stamping the check as “paid” or that she gave any discount without a discount card. She explained that she could not have committed these acts since all receipts and discount applications were handled by the cashier. But when asked why the discounted receipt was not given to the guests, she merely replied that she could no longer remember.

In a separate inquiry, the cashier of Café Plaza maintained that a discount card must have been presented since there was a Discount Slip and a stamped receipt indicating the discounted payment.

[8] Finding Episcope to have failed to sufficiently explain the questionable discount application, PPHI terminated her employment for committing acts of dishonesty, willful disobedience, serious misconduct, and loss of trust and confidence.

[9] Episcope filed a complaint for illegal dismissal with prayer for payment of damages and attorney's fees against PPHI before the NLRC.

Rulings of the Labor Arbiter and the NLRC


On October 20, 2005, the Labor Arbiter (LA) dismissed Episcope’s complaint for illegal dismissal.

The LA found that there was substantial evidence to support the charge of improper discount application and observed that the act resulted to a loss on the Hotel’s part. Accordingly, the LA held that Episcope’s actions rendered her unworthy of the trust and confidence demanded by her position.

On appeal, the NLRC affirmed the LA’s decision in its May 30, 2007 Resolution. It also denied Episcope’s motion for reconsideration in its November 14, 2007 Resolution.

Ruling of the Court of Appeals


The CA reversed the NLRC’s Decision. It found the report submitted by the auditors insufficient to prove that Episcope was guilty of the charges against her.

The CA described the report as a mere transaction account in tabular form, without evidentiary worth. It was unsigned and bore no indication of Episcope’s alleged culpability. The CA likewise did not give credence to the minutes of the administrative hearing because it was based on the same unaudited report.

The CA (1) declared Episcope’s dismissal illegal; (2) ordered her reinstatement to her former position without loss of seniority rights and benefits under the Labor Code; and (3) remanded the case to the NLRC for further proceedings on her money claims and other benefits.

PPHI moved for reconsideration but he CA in its July 5, 2010 Resolution denied the motion. PPHI then filed with the Supreme Court a petition for certiorari under Rule 45.

The Supreme Court ruling


[1] The Court reversed the findings and conclusion of the CA. The records show that Episcope committed acts of dishonesty that resulted to monetary loss on the part of PPHI. More significantly, her acts led to PPHI’s loss of trust and confidence in her.

Despite the questioned value of the unaudited and unsigned auditor’s report, all circumstances support the finding that Episcope was negligent in her duty to carefully account for the money she received from the café’s guests. Even though the receipts were prepared by the cashier, Episcope, as a service attendant, actually handled the money given to her by the guests. She should have at least known why there was a shortage in remittance. Yet when asked, she could not offer any plausible explanation but merely shifted the blame to the cashier.

[2] Article 293 (formerly Article 279) of the Labor Code25 provides that the employer must not terminate the services of an employee except only for a just or authorized cause.

Among the just causes for termination is the employer’s loss of trust and confidence in its employee. Article 296 (c) (formerly Article 282 [c]) of the Labor Code provides that an employer may terminate the services of an employee for fraud or willful breach of the trust reposed in him.  

But in order for loss of trust and confidence to be properly invoked, certain requirements must be complied with, namely:
  1. the employee must be holding a position of trust and confidence, and

  2. there must be an act that would justify the loss of trust and confidence.

[3] The two classes of positions of trust are:
(1) managerial employees whose primary duty consists of the management of the establishment in which they are employed or of a department or a subdivision, and other officers or members of the managerial staff;

(2) fiduciary rank-and-file employees, such as cashiers, auditors, property custodians, or those who, in the normal exercise of their functions, regularly handle significant amounts of money or property. These employees, though rank-and-file, are routinely charged with the care and custody of the employer’s money or property, and are thus classified as occupying positions of trust and confidence.
Episcope belonged to this latter class and therefore, occupied a position of trust and confidence.

[4] Proof beyond reasonable doubt is not required in dismissing an employee for loss of trust and confidence. It is sufficient that there is some basis to believe that the employee is responsible for the misconduct. The nature of the employee’s act rendered the employee absolutely unworthy of trust and confidence demanded by the position.

Loss of trust and confidence must be based on substantial evidence and not on the employer’s whims, caprices or suspicions. Otherwise, the employee would eternally remain at the mercy of the employer. Loss of confidence must not be indiscriminately used as a shield by the employer against a claim that an employee’s dismissal was arbitrary.

Tuesday, October 01, 2013

BP 22 demand letter (notice of dishonor) must be actually received by issuer of check

Plain Language summary:

Case title: Erlinda C. San Mateo, Petitioner v. People of the Philippines, Respondent,” G.R. NO. 200090, March 6, 2013

Ruling:

Notice of dishonor must be actually received by issuer of the check.

When an acquittal is based on lack of proof beyond reasonable doubt, civil damages can be awarded.

Background facts


The Metropolitan Trial Court (MeTC) of Taguig City, Branch 74 found San Mateo guilty of 10 counts of violation of B.P. 22. She was sentenced to suffer the straight penalty of imprisonment of six months for each count. As to San Mateo’s civil liability, the MeTC ordered her to pay Php 134,275.00, the total value of the 11 checks she issued to ITSP International, Incorporated.

Both the Regional Trial Court and the Court of Appeals affirmed the MeTC’s decision.

Supreme Court ruling


The Supreme Court acquitted San Mateo on the ground that her guilt has not been established beyond reasonable doubt.

But her civil liability for the dishonored checks stands. She must pay Php 134,275.00 plus 12% interest per annum from the time the sum became due and demandable until fully paid.

Reasons for the Court’s ruling


[1] To be liable for violation of B.P. 22, the following essential elements must be present:
(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

The Court found that the second element was not sufficiently established. Section 2 of B.P. 22 creates the presumption that the issuer of the check was aware of the insufficiency of funds when the check was issued and the bank dishonored it. But this presumption, however, arises only after it is proved that:
(1) the issuer had received a written notice of dishonor and

(2) within five days from receipt of the notice, the issuer failed to pay the amount of the check or to make arrangements for its payment.

[2] San Mateo may have requested in her letters that Sehwani (ITSP Vice-President for Operations) defer depositing all the checks, otherwise, her account will close. But San Mateo’s act was not an admission that, when she issued those checks, she knew that she would have no sufficient funds in the drawee bank.

Sehwani tried to serve the notice of dishonor to San Mateo two times. First, Sehwani’s counsel sent a demand letter to San Mateo’s residence at Greenhills, San Juan. When the security guard refused to accept the letter, the liaison officer told the guard to hand it to San Mateo. But the prosecution failed to show that the letter ever reached San Mateo.

Second, Sehwani’s counsel sent a demand letter to San Mateo by registered mail. It was returned with the notation “N/S Party Out 12/12/05” and that San Mateo did not claim it despite three notices to her.

[3] The notice of dishonor must be actually received by the issuer of the check. The Court has consistently ruled that receipts for registered letters, including return receipts, do not themselves prove receipt. They must be properly authenticated to serve as proof of receipt of the letters, claimed to be a notice of dishonor.

The presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that the accused received the notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the accused. The prosecution must also prove actual receipt of the notice, because the fact of service provided for in the law is reckoned from receipt of the notice of dishonor by the accused.

Since there is insufficient proof that San Mateo actually received the notice of dishonor, the presumption that she knew of the insufficiency of her funds cannot arise. For this reason, the Court cannot convict her with moral certainty of violation of B.P. 22.

[4] But San Mateo’s acquittal does not extinguish her civil liability for the dishonored checks. When an acquittal is based on lack of proof beyond reasonable doubt, civil damages can be awarded. For this reason, the trial court’s directive for San Mateo to pay the civil liability in the amount of Php 134,275.00 representing the total value of the 11 checks plus 12% interest per annum from the time the said sum became due and demandable until fully paid, stands.

Monday, September 30, 2013

If there’s no valid marriage license, then the marriage contract, authority of solemnizing officer, testimony of witnesses and sponsors, wedding pictures, etc. do not mean anything

Plain Language summary:

Case title:Syed Azhar Abbas v. Gloria Goo Abbas,” G.R. No. 183896. January 30, 2013

Issue:

The Regional Trial Court (RTC) ruled that no valid marriage license was issued and thus the marriage is void. The RTC based its ruling on the certification by the Municipal Civil Registrar of Carmona, Cavite that no marriage license was issued to Syed and Gloria.

On the other hand, the Court of Appeals held that, for several reasons, Syed and Gloria were validly married. The certification of the Municipal Civil Registrar failed to categorically state that a diligent search for the marriage license was conducted under Sec. 28, Rule 132 of the Rules of Court.

Supreme Court ruling:

Syed and Gloria’s marriage is void because they did not have a valid marriage license.

Relevant cases and legal provisions:

Republic vs. Court of Appeals, G.R. No. 103047, September 2, 1994, 236 SCRA 257

Cariño vs. Cariño, 403 Phil. 861, 869 (2001)

Section 28, Rule 132 of the
Rules of Court

Family Code of the Philippines: Article 3; Article 4; Article 35 (3)

Background facts


Syed Azhar Abbas (Syed) filed a petition for the declaration of nullity of his marriage to Gloria GooAbbas (Gloria) with the Regional Trial Court of Pasay City (RTC).

The RTC ruled that Syed and Gloria’s marriage was void from the beginning because they did not have a valid marriage license. The Municipal Civil Registrar of Carmona, Cavite certified that Syed and Gloria’s alleged Marriage License No. 9969967 was actually issued to a certain Arlindo Getalado and Myra Mabilangan.

On the other hand, the Court of Appeals ruled that Syed and Gloria’s marriage was valid because:

(1) The Municipal Civil Registrar’s certification cannot be used as evidence because it failed to categorically state that a “diligent search” for the marriage license was conducted, as required by Section 28, Rule 132 of the Rules of Court.

(2) Both Syed and Gloria were legally capacitated to marry; the Embassy of Pakistan issued a certificate of legal capacity in Syed’s favor.

(3) Syed admitted to signing the marriage contract.

(4) Several pictures were presented showing Syed and Gloria before the solemnizing officer, the witnesses, and other members of Gloria’s family, taken during the marriage ceremony and in the restaurant where the lunch was held after the marriage ceremony.

(5) Syed and Gloria comported themselves as husband and wife.

(6) Syed only filed his petition after Gloria had filed a case against him for bigamy.

Supreme Court ruling


[1] Syed and Gloria’s marriage is void because they did not have a valid marriage license.

[2] All the evidence cited by the CA to show that a wedding ceremony was conducted and a marriage contract was signed cannot cure the absence of a valid marriage license. Article 4 of the Family Code is clear when it says, “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2).”

[3] From the absence of the words “despite diligent search” in the certification, the CA reasoned that no diligent search was conducted and thus, the certification could not be used as evidence. But a categorical declaration is not absolutely necessary for Sec. 28, Rule 132 to apply, as held in Republic vs. Court of Appeals and in Cariño vs. Cariño.

The Municipal Civil Registrar did conduct a “diligent search” because it located and submitted Marriage License No. 996967 to the RTC.

[4] The solemnizing officer testified that the marriage contract and a copy of the marriage license were submitted to the Local Civil Registrar of Manila. Gloria could have simply secured a copy of the license from that office and submitted it to the RTC. But Gloria inexplicably failed to do so, further weakening her claim that there was a valid marriage license issued for her and Syed.

Saturday, September 28, 2013

A notarized document can be questioned as to validity of its execution or contents

Case title:Spouses Lehner and Ludy Martires v. Menelia Chua,” G.R. NO. 174240, March 20, 2013

Issues:

Validity of a notarized document

Equitable mortgage

Background facts


[1] Menelia Chua and her mother owned 24 memorial lots located at the Holy Cross Memorial Park in Barangay Bagbag, Novaliches, Quezon City. Menelia borrowed Php 150,000.00 from spouses Lehner and Ludy Martires. Menelia promised to pay a monthly interest of 8% and an additional 10% monthly interest in case of default. The loan was secured by a real estate mortgage over the memorial lots.

[2] Menelia failed to fully settle her obligation. Subsequently, without foreclosing the mortgage, the Martires couple transferred ownership of the lots in their name through a Deed of Transfer.

[3] Menelia filed with the Regional Trial Court (RTC) of Quezon City a complaint against the Martires couple, Manila Memorial Park Inc. (owner of the Holy Cross Memorial Park), and the Register of Deeds of Quezon City. She asked the RTC to:

  • annul the contract of mortgage between her and the Martires couple on the ground that the interest rates imposed were unjust and exorbitant;

  • determine her liability under the law; and

  • reconvey the disputed property to her.

Menelia later on alleged that the Deed of Transfer and Affidavit of Warranty were forged and asked that they be annulled.

[4] The RTC dismissed Menelia’s complaint for lack of merit and granted the counterclaims of the Martires couple.

[5] The Court of Appeals (CA) reversed the RTC decision. The CA ruled, among other things, that the Deed of Transfer was not duly notarized because there was no convincing proof that Menelia appeared before the notary public.

Supreme Court ruling: notarization does not guarantee the validity of a document’s contents


[1] The CA has pointed out the dubious circumstances and irregularities in the alleged notarization of the Deed of Transfer. Among others:

  • the Administrative Officer of the Notarial Section of the Makati City RTC certified that their office could not find a copy of the Deed of Transfer in their files;

  • the Deed did not state the date of execution and lacked the marital consent of Menelia's husband;

  • the notary public whose certification was presented by the Martires couple did not testify and therefore could not be cross-examined as to the truthfulness of his certification;

  • the certification of the Clerk of Court of the Notarial Section of the Makati City RTC was not based on documents existing in their files, but was simply based on the certification issued by the notary public.

[2] A notarized document enjoys the presumption of regularity. But notarization does not guarantee the validity of the document’s contents. The presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.

Wednesday, September 04, 2013

Citizens’ guide to the budget: a weapon against pork barrel scams and corruption, and for government transparency and accountability

Overview:

Civil society groups and private individuals must  (1) scrutinize the national budget's pork barrel allocations, lump sums, unprogrammed funds, and (2) pressure Congress or Malacanang to produce a “citizens’ guide to the budget.”

Civil society groups should partner with the International Budget Partnership.

Civil society groups and private individuals can learn budget advocacy and monitoring through IBP’s Open Budgets Game!

Reasons why governments should publish a citizens' guide to the budget

Countries that currently publish a citizens’ guide to the budget

Producing a citizens’ guide to the budget can either be (a) mandated by law, or (b) a proactive move by Congress or Malacanang

Examples of citizens’ guide to the budget
After the successful and festive meeting of thousands of ordinary Filipinos in Luneta last week against the pork barrel scam, many are asking, “What’s next? How can Filipinos continue the fight against the pork barrel scam and corruption in government?”

My suggestions are for civil society groups and private individuals to (1) scrutinize the national budget's pork barrel allocations, and (2) pressure Congress or Malacanang to produce a “citizens’ guide to the budget.”

President Aquino has changed the system in the allocations for congressional and senatorial projects. These allocations will now become line items in the national budget. Presumably, this new set-up will prevent another scam. But the national budget is thousands of pages long and only a few Filipinos have the technical expertise to understand it.

[1] Civil society groups should partner with the International Budget Partnership. The IBP explains its advocacy:
If you want to fight poverty, you need to care about government budgets. As the specific plans for how public funds will be raised and spent, budgets are the government’s most powerful tool to meet the needs and priorities of a country and its people. The aim of the International Budget Partnership (IBP) is to ensure that government budgets are more responsive to the needs of poor and low-income people in society and, accordingly, to make budget systems more transparent and accountable to the public.
The IBP believes that the public has a right to comprehensive, timely, and useful information on how the government manages public funds. Our experience shows that when ordinary people have information, skills, and opportunities to participate, broader public engagement in government budget processes can promote substantive improvements in governance and poverty.
In order to achieve its goals, the IBP works in five major areas:
  • Building budget analysis and advocacy skills through training and technical assistance
  • Measuring and advancing transparency, accountability, and public participation in the budget process
  • Contributing to strong and sustainable organizations by providing financial assistance for civil society budget work
  • Enhancing knowledge exchange among civil society budget groups and other public finance stakeholders by acting as a hub of information on civil society budget work
  • Building vibrant international and regional budget networks
The IBP and its civil society partners contribute to reforms in how governments around the world manage public funds so that:
  • budget processes (how budgets are proposed, debated, implemented, and evaluated) are more transparent and open to public input;
  • budget policies (who will pay what taxes, or how much money will go to specific programs) effectively address the needs of the poor and marginalized; and
  • budget rules, regulations, and institutions are stronger and better able to resist corruption and mismanagement and ensure more effective and efficient use of public resources.
Relevant links:

Code-NGO: PDAF Watch

Philippine Center for Investigative Journalism: PDAF Flow Chart
Some Philippine civil society groups that are already partnering with the IBP are the Philippine Center for Investigate Journalism, Balay Mindanaw Foundation, Procurement. Watch Inc., Philippine Center for Civic Education and Democracy, Institute for Popular Democracy, Caucus of Development NGO Networks (CODE-NGO), and Concerned Citizens of Abra for Good Government.

[2] Civil society groups and private individuals can learn budget advocacy and monitoring through the IBP’s Open Budgets Game!
 
[3] Why should governments publish a citizens' guide to the budget? (From “Producing a Citizens' Guide to the Budget: Why, What and How?” by Murray Petrie and Jon Shields, OECD Journal on Budgeting, Volume 2010/2)
Access to information is a precondition for citizens to: understand how a government is using its entrusted powers to tax, borrow, and spend public resources; become involved in informed public debate during the budget process; and hold a government properly to account. By reporting and explaining budget decisions and the state of the public finances with simplicity and clarity, the government can help to demystify the budget beyond the often necessarily technically complex detail in the budget documentation. Otherwise, the job is left to civil society or the media, who are not always adequately equipped. It is also a good discipline for policy makers to explain themselves in simple, everyday language.

Publication of a citizens’ guide allows a government to explain in plain language the objectives of its budget and to supplement and complement other supporting material such as the budget speech, press releases, web pages, media appearances, etc. A guide provides a single place where the public can learn about the main features of the budget and gain access to more detailed reference sources. It also helps citizens to assess the impact on their own circumstances and on specific groups in society (including the effects on the burden of taxation, service provision and employment prospects).

Publication of a citizens’ guide to the budget is called for in the International Monetary Fund (IMF) Code of Good Practices on Fiscal Transparency (2007) under the principle that “fiscal information should be presented in a way that facilitates policy analysis and promotes accountability” (IMF, 2007a). The code stipulates specifically that: “A clear and simple summary guide to the budget should be widely distributed at the time of the annual budget.” A short paragraph in the explanatory IMF Manual on Fiscal Transparency (2007) lists some of the substantive and qualitative elements of a citizens’ guide (IMF, 2007).
[4] What countries currently publish a citizens’ guide to the budget? (Producing a Citizens’ Guide to the Budget: Why, What and How?,” by Murray Petrie and Jon Shields,OECD Journal on Budgeting, Volume 2010/2)
It appears that relatively few governments currently publish a citizens’ guide to the annual budget. Less than 20 concrete examples have so far been identified. A major source of information about current practice is the Open Budget Survey. The seven countries identified in the 2006 survey (based on 2005 data) were El Salvador, France, Korea, New Zealand, South Africa, Sweden and the United Kingdom. Two of these - New Zealand and the United Kingdom - publish summary information on the budget but do not call it a citizens’ guide.
The 2008 survey identified an additional ten countries that published a citizens’ guide or apparent equivalent: Angola, Colombia, Croatia, Georgia, Ghana, India, Norway, Russia, Uganda and Ukraine. The 2008 survey found that, of these 17 guides, ten were very informative, three were somewhat informative, and four were not very informative.
[5] Civil society groups and private individuals must pressure Congress or Malacanang to publish a citizens’ guide to the budget. The guide must expressly point out, describe, and explain, among other things, what are the (a) pork barrel allocations for senators and representatives, (b) lump sums, and (c) unprogrammed funds.

Producing a citizens’ guide to the budget should ideally be mandated by law. Or, if Congress and Malacanang are sensitive to the public anger over the pork barrel scam,  they should proactively produce the citizens’ guide to the budget, in cooperation with credible institutions like the UP National College of Public Administration and Governance.

If producing the citizens’ guide to the budget is mandated by law, safeguards must be placed to prevent the guide from simply being a “praise release.” For example, comments, critiques, or evaluation of the budget by civil society groups and institutions like the UP NCPAG must be included in the guide (at the very least, as annexes).

[6] Learn more about what a “citizens’ guide to the budget” is all about through these resources:
A Citizen’s Guide to the Federal Budget (IBP)
A Citizens’ Guide to Monitoring Government Expenditures (IBP)
Producing a Citizens’ Guide to the Budget (Organisation for Economic Co-operation and Development)
A Citizen’s Guide to the Federal Budget (John F. Kennedy Library)
Citizen’s Guide - New York State Division of the Budget
NYS DOB: Citizen’s Guide The Budget Process
Citizen’s Guide to the City’s Budget Process (City of San Diego)
2013 Citizen’s Guide To The Washington State Budget
[7] Philippine Center for Investigative Journalism articles
Part 1: PDAF racket rocks 'daang matuwid'
Sidebar 1: Pork a la PNoy

Part 2: Bailiwicks, not poor towns, grab slabs of House PDAF
Sidebar 2: Good pork, bad pork

Part 3: Senators' PDAF floods NCR, vote-rich provinces
Sidebar 3: Pork, 'daang matuwid' don't mix: One bidder, one PDAF project?

Part 4: Binay bags P200-M PDAF: Pork train to Malacañang?
Sidebar 4: LGUs ride piggyback on pork

Part 5: Bogus, favored NGOs fail to account for P770-M pork