Legal Updates and free legal information Family Code Philippines

300,000+ visitors and counting: Thanks for browsing this blog

2012-01-30T09:37:00.002+08:00

I started this blog October 30, 2005 and last week, my website tracker (Sitemeter.com) reported that some 300,000+ 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 three trackers: Google Analytics, Sitemeter and Bravenet. Due to the differences in the way these trackers work, Analytics reports the highest figure while Bravenet reports the lowest.

The service I provide in this blog and in my Family Matters website (which has now reached 225,000+ visitors from 93 countries) 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.

Some 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 blog’s 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:

Integrated Bar of the Philippines (IBP) chapter offices in your town or city, usually located in the Hall of Justice
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
Legal Aid Bureau of the San Beda College of Law in Mendiola, Manila
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)
Sebastinian Office of Legal Aid, San Sebastian College Institute of Law; contact tel. no. 734-8931 local 312
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.

I 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.

Senate impeachment rules in Chief Justice Corona’s trial (Plain English / Plain Language revisions)

2011-12-19T10:27:00.090+08:00

What is Plain Language?

Before the start of Ombudsman Merceditas Gutierrez’s impeachment trial several months ago, Senator Miriam Defensor-Santiago stated in media interviews that the Senate “Rules Of Procedure On Impeachment Trials” should be written in plain language. Sen. Santiago said this was necessary for the public to understand the rules and because not all senators were lawyers.

Among other things, Sen. Santiago said that needless words (like “hereinunder”) must be omitted. She also said that the rules used old-fashioned English. Sadly, Sen. Santiago’s suggestions were not followed.

(Sen. Santiago is the author of two bills that require health insurance documents and all government communications, except regulations, to be written in plain language.)

With all due respect for the Senate, I am posting these Before and After revisions of its Rules of Impeachment (1) for the benefit of millions of Filipinos who are expected to follow on TV and radio the impeachment trial of Chief Justice Renato Corona starting January 2012; and (2) to show what the impeachment rules could look like when written in Plain Language.

If there are discrepancies between the official Senate rules of procedure and my revisions, you must follow the official Senate rules.

Before	After
I. When the Senate receives articles of impeachment pursuant to Article XI, Sections 2 and 3 of the Constitution, the President of the Senate shall inform the House of Representatives that the Senate shall take proper order on the subject of impeachment and shall be ready to receive the prosecutors on such time and date as the Senate may specify.	I. When the Senate receives articles of impeachment under Article XI, Sections 2 and 3 of the Constitution, the Senate President must inform the House of Representatives that the Senate will take proper order on the subject of impeachment and will be ready to receive the prosecutors on the time and date the Senate will specify.

Vague expression: What does “take proper order on the subject of impeachment” mean?

“Pursuant to” is legalese; it’s better to use “under” or “in accordance with” as Martin Cutts suggests in his “Plain English Lexicon”.

The word “shall” is repeatedly used in the Senate Rules of Impeachment. As Prof. Joseph Kimble has observed, the meaning of “shall” is ambiguous, changing from sentence to sentence. US courts have ruled that “shall” can mean (1) has a duty to; (2) should; (3) is; (4) will; or (5) may. To avoid this ambiguity, the US Federal Rules of Civil Procedure now use should, may, or must instead of “shall”, except in the rule on summary judgment (Michigan Bar Journal, December 2007). In these revisions, I replaced “shall” with what the context called for.

Before

After

II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside but shall not vote. Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend. The Chief Justice shall be administered the oath or affirmation, prescribed under these Rules, by the President of the Senate and shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached.

The President of the Senate shall preside in all other cases of impeachment and, for that purpose, placed under the prescribed oath or affirmation by any person authorized by law to administer an oath.

II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court will preside but cannot vote.

The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend.

The Senate President must administer the oath or affirmation prescribed under these Rules to the Chief Justice.

The Chief Justice must preside over the Senate during the consideration of the articles of impeachment and the trial.

The Senate President must preside in all other cases of impeachment. He or she must be placed under the prescribed oath or affirmation by any person authorized by law to administer an oath.

Question: What exactly is involved in “considering” the articles of impeachment? The words “consideration”, “considering” and “consider” are used several times in the impeachment rules. Does “considering the articles of impeachment” refer only to that stage when the senators took their oath and ordered the issuance of the summons for Chief Justice Corona? Or does it refer to the whole impeachment trial? The phrase “shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached” seems to indicate that there are two different stages. But Rule III says that the Senate must continue in session until it has rendered final judgment; this seems to indicate that these are not different stages.

Passive voice: “Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend.” I changed most passive voice sentences into the active voice. For example, this sentence became: “The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend.”

Before

After

III. Before proceeding to the consideration of the articles of impeachment, the Presiding Officer shall administer the prescribed oath or affirmation to the Members of the Senate then present and to the other Members of the Senate as they shall appear, whose duty it shall be to take the same.

Upon presentation of the articles to the Senate, the Senate shall specify the date and time for the consideration of such articles. Unless the Senate provides otherwise, it shall continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until final judgment shall be rendered, and so much longer as may, in its judgment, be necessary.

Senators shall observe political neutrality during the course of the impeachment trial. “Political neutrality” shall be defined as exercise of public official’s duty without unfair discrimination and regardless of party affiliation or preference.

III. Before the Senate considers the articles of impeachment, the Presiding Officer must administer the prescribed oath or affirmation to the senators. All senators must take the oath or affirmation before they can participate in the impeachment proceedings.

Upon presentation of the articles to the Senate, it must specify the date and time to consider the articles. Unless the Senate provides otherwise, it must continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until it has rendered final judgment, or beyond if necessary.

Senators must observe political neutrality during the course of the impeachment trial. “Political neutrality” is the exercise of a public official’s duty without unfair discrimination and regardless of party affiliation or preference.

The phrase “Before proceeding to the consideration of the articles of impeachment” at the beginning of this Rule is a misplaced modifier. It appears that it is only the Presiding Officer (or the Senate President in this case) who will consider the articles of impeachment, not the whole Senate. I changed the phrase into the active voice: “Before the Senate considers the articles of impeachment”. (Again the question pops up, what does “consideration” or “consider” mean?)

The second paragraph states “Upon presentation of the articles to the Senate”. Who makes the presentation to the Senate? The Presiding Officer?

The words “same”, “said”, and “such” should not be used as modifiers or as pronouns because they are vague. Bryan A. Garner, editor in chief of Black’s Law Dictionary, includes these words in his Dirty Dozen list. In the impeachment rules “same” as a pronoun is used five times; “said” is used seventeen times; and “such” is used nineteen times. (Please see the table below listing the various times “same”, “said”, and “such” are used in the impeachment rules.)

On the word “same”, Garner says:

Many lawyers use “same” as a pronoun because they think they are being precise. For example: “Once the indemnitee receives such notice, the indemnitee shall acknowledge same.” Use “it” instead of “same” (“it” is not less precise).

Ordinary pronouns are better than “same” because they differentiate singular from plural – “same” doesn’t.

On the word “such”, Garner explains:

“Such” is inherently ambiguous. To the educated non-lawyer, it means “of that kind”. To the lawyer, it means “the very one just mentioned”. “Such” can oftentimes be replaced by “the”.

On the word “said”, Scott P. Stolley in Michigan Bar Journal, August 2003 clarifies:

It is a crutch word that lends awkwardness, not precision. There is no need to say ‘‘To the Honorable Judge of Said Court.’’ Just say ‘‘To the Honorable Court.’ Don’t say: ‘‘The said witness saw the said defendant run the light.’’ Simply say ‘‘The witness saw the defendant run the light.’’

Rule III should instead have been devoted strictly to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.

Question: After the trial, if the Senate votes to remove Chief Justice Corona from his office, how will its judgment be executed? The Senate impeachment rules do not have any provision on the execution of judgment.

Before	After
IV. The Presiding Officer shall have the power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, and writs authorized by these Rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.	IV. The Presiding Officer, by himself or by the Secretary of the Senate, has the power to issue and enforce all orders, mandates, writs, regulations, and orders authorized by these Rules or by the Senate.

Redundant expressions: (1) “make and issue”; (2) “make and enforce”; and (3) “authorize or provide”.

Before

After

V. The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, and writs of the Senate.

V. The Senate has the power to:

compel witnesses to attend;
enforce obedience to its orders, mandates, writs, and judgments;
preserve order;
punish in a summary way contempt of, or disobedience to, its authority, orders, mandates, writs, or judgments; and
make all orders, rules, and regulations it may consider essential to the ends of justice.

The Sergeant-at-Arms of the Senate, as directed by the Senate President, may employ the aid of government agencies in enforcing the orders, mandates, and writs of the Senate.

Redundant expressions: “aid and assistance”, “enforce, execute, and carry into effect”, “essential or conducive”.

Vague: “Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance”. Aid and assistance from whom or from where?

The first sentence of Rule V has about 60 plus words. I broke up this long sentence into a vertical list. Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, August 2007):

“The vertical list is one of the drafter’s—and reader’s—best friends. Probably no other technique is more useful for organizing complex information, breaking it down into manageable chunks, avoiding repetition, and preventing ambiguity.”

This Rule incorrectly uses the word “deem”. Garner in his book on language and writing says that “the word deem should create a legal fiction, not state a truth.” In “Synthesis: Legal Reading, Reasoning and Writing in Canada” (by Margaret Elizabeth McCallum, Christina L. Kunz, Deborah A. Schmedem), the authors recommend:

Avoid use of the term “to deem” as a substitute for “to think” or “to consider”. The word means “to treat [a thing] as being something that it is not, or possessing certain qualities it does not possess”. In this technical sense, “deem” is used in statutes to create a legal fiction; for example, a statute that requires applications to be originals signed by the applicant may provide that faxed applications will be deemed to be originals.

The phrase “all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice” incorrectly uses the relative pronoun “which” instead of “that”. In formal American English, “that” is used for restrictive clauses while “which” (surrounded by commas) is used for non-restrictive clauses. A clause is non-restrictive if it merely provides additional information and can be removed without changing the meaning. In British English, there is no distinction between “that” and “which”. Most Filipinos, unaware of the difference between restrictive and non-restrictive clauses, use “which” instead of “that”. (I have also made this mistake on several occasions.) But to achieve precision in government communications, we must follow the American English distinction between the relative pronouns “that” and “which”. (Please read Jose Carillo’s English Forum article “Learning to use the relative pronouns confidently”.)

Before

After

VI. The President of the Senate or the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency or admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed; or the Presiding Officer may at his/her option, in the first instance, submit any such question to a vote of the Members of the Senate. The motion for a vote and the contrary opinion shall not take more than two (2) minutes each, with a one minute rebuttal allowed for the proponent of the motion. The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.

VI. The Presiding Officer may rule on:

questions of evidence such as materiality, relevancy, competency or admissibility; and
incidental questions.

The ruling will stand as the judgment of the Senate. But if a senator asks that a formal vote be taken on the ruling, the Presiding Officer must submit the ruling for the Senate’s decision, after one contrary opinion has been expressed.

The motion for a vote and the contrary opinion must not take more than two minutes each, with a one minute rebuttal allowed for the motion’s proponent.

Instead of ruling by himself or herself, the Presiding Officer can choose to submit any question for the Senate’s vote.

When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court.

The first sentence of Rule VI is an ultra long sentence, with about 100 words. I revised it by dividing it into three sentences, with the first sentence using a vertical list.

The phrase “such as, but not limited to” is legalese and can be changed to “such as” without any negative legal effect.

The word “suppletorily” is jargon. Instead of the sentence “The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.”, I changed it to “When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court.”

Before

After

VII. Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided, a writ of summons shall be issued to the person impeached, reciting or incorporating said articles, and notifying him/her to appear before the Senate upon a day and at a place to be fixed by the Senate and named in such writ, and to file his/her Answer to said articles of impeachment within a non-extendible period of ten (10) days from receipt thereof; to which the prosecutors may Reply within a non-extendible period of five (5) days therefrom; and to stand to and abide by the orders and judgments of the Senate.

Such writ shall be served by such officer or person named in the order thereof, not later than three (3) days prior to the day fixed for such appearance of the person impeached, either by the delivery of an attested copy thereof to the person impeached, or if personal service cannot be done, service of the writ may be made by leaving a copy with a person of sufficient age and discretion at his/her last known address or at his/her office or place of business; and if the service of such writ shall fail the proceedings shall not thereby abate, but further service may be made in such manner as the Senate shall direct. If the person impeached, after service, shall fail to appear, either in person or by counsel, on the day so fixed or, appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed nevertheless as upon a plea of not guilty. If a plea of guilty shall be entered, judgment may be entered thereon without further proceedings.

VII. The Senate must issue a writ of summons to the person impeached. The writ must:

recite or incorporate the articles;
notify the person impeached to appear before the Senate on the day and place fixed by the Senate;
order the person impeached to file an Answer to the articles within a non-extendible period of ten days from receipt of the summons, with copy furnished to the panel of prosecutors; and
order the person impeached to abide with the orders and judgments of the Senate.

The officer or person charged with serving the writ must serve it not later than three days before the day fixed for the appearance of the person impeached either by:

delivering an attested copy of the writ to the person impeached; or
if personal service cannot be done, by leaving the copy with a person of sufficient age and discretion at his or her last known address, office, or place of business.

If the writ cannot be served in the ways stated above, the Senate can direct that the summons be served in some other manner.

The trial will proceed even if:

the person impeached, after due service of the writ, fails to appear either in person or by counsel, on the day fixed in the summons; or
the person impeached fails to file his Answer to the articles of impeachment.

After the prosecutors have received the Answer, they have a non-extendible period of five days to file their Reply.

This Rule should have been incorporated into Rule III (or placed after it). The phrase “Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided” raises two questions: One, as I have noted before, who presents the articles of impeachment to the Senate? Does presenting the articles refer to the submission of the articles to the Senate by the House of representatives? Or does it refer to the Presiding Officer informing the Senate that the articles have been submitted to it?

Two, “organization of the Senate” into what? Into an impeachment court, of course, but this is not clearly provided. To what Rule does “hereinbefore provided” refer to? As I said above, Rule III should have been clearly devoted to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.

The sentences in this section are too long. I made them simpler by using numbered lists.

Vague: What does “to stand to ... the orders and judgments of the Senate” mean?

The phrase “prior to” is legalese. As Prof. Kimble suggests, the simpler word “before” should be used instead.

The provisions on (1) the filing of a Reply by the prosecutors and (2) entering of a plea of guilty should have been placed in the other Rules.

Before	After
XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.	XII. The Secretary of the Senate must record and report the proceedings in impeachment cases in the same manner as the legislative proceedings of the Senate.

Rule XII is verbose: the word “proceedings” is used three times in a single sentence, and the second part of the sentence (after the word “and”) can easily be incorporated into the first part.

I changed the phrase “in cases of impeachment” to “impeachment cases”. Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, November 2007) says that we should root out unnecessary prepositional phrases and question every of.

Before	After
XIII. Counsel for the parties shall be admitted to appear and be heard upon an impeachment: Provided, That counsel for the prosecutors shall be under the control and supervision of the panel of prosecutors of the House of Representatives.	XIII. The person impeached and the panel of prosecutors of the House of Representatives can be represented by their lawyers. The lawyer for the panel of prosecutors must be under its control and supervision.

The phrase “Counsel for the parties shall be admitted to appear and be heard upon an impeachment” is a formalism. I changed the word “counsel to the ordinary term “lawyer.

I removed the proviso (Provided, That ...). Prof. Kimble in his article “Down with Provided That” (Michigan Bar Journal, July 2004) enumerates the criticisms made by legal drafting experts against provisos. Among others, Kimble cites:

[1] Thomas R. Haggard, Legal Drafting in a Nutshell 279 (2d ed. 2003): ‘‘[P]rovided that . . . defies grammatical analysis. Provisos produce single sentences that are often hundreds of words long. Knowledgeable drafters have railed against them for years. Apart from being a grammatical abomination, provided that is ambiguous . . . .’’

[2] David Mellinkoff, Mellinkoff ’s Dictionary of American Legal Usage 520 (1992): ‘‘[The proviso] is one of the horrors of legal writing, in a class with notwithstanding.’’

Before	After
XVI. If a Senator is called as a witness, he/she shall be sworn, and give his/her testimony standing in his/her place.	?

What exactly does “give his/her testimony standing in his/her place” mean? In our trial courts, the witness usually sits beside the judge’s table (so that the judge can clearly hear the testimony and observe the demeanor of the witness). If you remember from the impeachment trial of former President Joseph Estrada, the senator-judges were sitting in one section of the Senate hall and in front of them was a chair reserved for the witness called to testify. The lawyers for President Estrada and the House panel of prosecutors were on opposite sides of the hall, at right angles to where the senator-judges were. Does Rule XVI mean that the senator-witness will not sit down in the place reserved for the testifying witness but instead will testify while standing up in the section of the hall reserved for the senator-judges? This seems to be what Rule XVI is saying because Rule XXI states: “Thereafter, each Senator, as his/her name is called, shall rise in his/her place and answer: guilty or not guilty.”

But what’s the point in requiring the senator called as a witness to stand up while testifying? What if the senator is arthritic and cannot stand up for a long period of time? Will it be a violation of Rule XVI if the senator requests that he or she be allowed to sit down while testifying?

Before

After

XXI. The trial of all the articles of impeachment shall be completed before the Senators vote on the final question on whether or not the impeachment is sustained. On the final question whether the impeachment is sustained, the vote shall be taken on each article of impeachment separately; and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of all the Members, a judgment of acquittal shall be entered; but if the person impeached in such articles of impeachment shall be convicted upon any of said articles by the votes of two-thirds of all the Members, the Senate shall proceed to pronounce judgment of conviction, and a certified copy of such judgment shall be deposited in the Office of the Secretary of the Senate. A motion to reconsider the vote by which any article of impeachment is sustained or rejected shall not be in order.

XXI. The Senate must complete the trial of all the articles of impeachment before it votes on whether the person impeached is guilty or not.

The Senate must vote on each article of impeachment. An affirmative vote of two-thirds of all the senators is necessary to convict the person impeached of any of the articles of impeachment.

If the impeachment is not sustained on any of the articles of impeachment, the Senate must render a judgment of acquittal.

If the person impeached is convicted on any of the articles of impeachment, the Senate must render a judgment of conviction for that article.

A certified copy of the judgment, whether for acquittal or conviction, must be deposited in the Office of the Secretary of the Senate.

A motion for reconsideration of the vote on any of the articles of impeachment is not allowed

Redundant expressions: The phrase “on the final question on whether or not the impeachment is sustained” is used twice (first and second sentences). The phrase “by the votes of two-thirds of all the Members” is used twice in the second sentence.

In the clause “the vote shall be taken on each article of impeachment separately”, the adverb “separately” is unnecessary or redundant because of the word “each“.

The second sentence is ultra long with 105 words, and is complex, dealing with several issues (voting on each article; judgment of acquittal; judgment of conviction; two-thirds vote; and deposit of the judgment). I broke up this sentence into five sentences (in four paragraphs).

Rule XXI uses the words “enter” and “pronounce” in connection with “judgment”. I used the word “render” instead.

I will be adding more revisions and refining them as the impeachment proceedings against Chief Justice Corona unfold. If you have your own plain language revisions that can make the Senate rules on impeachment more understandable for the public, please send them to me at gtgalacio@yahoo.com. I am sure that some of you have noticed that the impeachment rules use a lot of nominalizations (verbs turned into nouns). Can you spot the nominalizations or “nouners” as Prof. Kimble calls them?

Same	Said	Such
Rule III whose duty it shall be to take the same. Rule IX the same shall be recorded Rule XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate. Rule XVIII The same shall likewise apply to the prosecutors, to the person impeached, and to their respective counsel and witnesses. Rule XXIII it being necessary to use the same as testimony.	Rule II during the consideration of said articles Rule VII reciting or incorporating said articles file his/her Answer to said articles of impeachment Rule XI adjournment of the Senate sitting in said trial XXI be convicted upon any of said articles Rule XXIII Presiding Officer of the said Senate the service of said subpoena the said ______ the said ______ the accusations as set forth in said articles the said ________ to answer to the said articles of impeachment Presiding Officer of the said Senate Form of Order to be indorsed on said writ of summons. mentioned in the said writ of summons. mentioned in the said writ of summons. Presiding Officer of the said Senate	Rule I to receive the prosecutors on such time and date Rule III for the consideration of such articles enforce such other regulations and orders employ such aid and assistance Rule VI submit any such question to a vote Rule VII named in such writ Such writ shall be served day fixed for such appearance of the person impeached if the service of such writ shall fail made in such manner as the Senate shall direct answer to such articles of impeachment Rule VIII I have performed such service Rule X at such other hour as the Senate may order Rule XI the Presiding Officer upon such trial Rule XXI the person impeached in such articles of impeachment certified copy of such judgment Rule XXIII such proceedings, examinations, trials, and judgments perform such orders, directions, and judgments Rule XXIV fix a day and hour for resuming such consideration

Ad cautelam: filing of pleadings and appearing in court to question its jurisdiction or as a precautionary measure

2011-12-10T11:10:00.034+08:00

Plain English / Plain Language version of “ad cautelam”

Two years ago, in an MCLE seminar sponsored by the Quezon City IBP, the speaker on Civil Procedure (from Romulo Mabanta) said that instead of “ad cautelam” or “ex abundanti ad cautelam”, lawyers should simply use the phrase “with express reservation on jurisdiction”.

The Latin term “ad cautelam” can be translated into English as “for security”, “as a precaution”, or “to be on the safe side.” The phrase “ex abundanti ad cautela” means “with extreme caution”.

The Revised Rules of Court do not have a specific provision on ad cautelam. But it has been used in at least two ways:

[1] To question a court’s jurisdiction and at the same time be able to file pleadings, lawyers can caption their pleadings as “ad cautelam”. In court hearings, lawyers must inform the judge that they are questioning the court’s jurisdiction.

[2] Ad cautelam pleadings may be filed as a precautionary measure to preserve a party’s remedies.

Using ad cautelam to file pleadings or ask for reliefs while questioning a court’s jurisdiction

[1] GMA’s electoral sabotage case before the Pasay City RTC

Lawyers for former President Gloria Macapagal-Arroyo (GMA) have been filing pleadings captioned “ad cautelam” with the Pasay City Regional Trial Court. They are questioning before the Supreme Court the RTC’s jurisdiction over the electoral sabotage case filed by the COMELEC against the former president. But at the same time, they have been asking the RTC for certain reliefs for GMA like hospital arrest, the use of a cellphone and laptop, etc. By captioning their pleadings with ad cautelam, these lawyers are reminding the RTC that they are not accepting its jurisdiction over the case.

[2] Does a rehabilitation court have jurisdiction over a partially executed NLRC decision?

Many years ago, I represented a former hotel chef. He had won his NLRC case for back wages against the hotel, and the decision had been partially executed. But the hotel filed for corporate rehabilitation with the Regional Trial Court in Manila, and the judge ordered all parties with money claims against the hotel to file their Answer. Parties who failed to file their Answer could no longer pursue their claims.

If I had filed an Answer for my client, it would have meant that I was accepting the court’s jurisdiction. My theory was that the NLRC had jurisdiction because it was a labor case and its decision had been partially executed. But as a precaution, I filed with the Manila RTC a pleading captioned “Manifestation/Motion ex abundanti ad cautelam”. In the pleading, I stated that while my client was complying with the court’s order, he was questioning its jurisdiction. In layman’s terms, it was better safe than sorry.

Using ad cautelam as a precautionary measure

[1] Aguedo F. Agbayani, petitioner, vs. The Commission On Elections And Rafael M. Colet, respondents. G.R. No. 87440-42 June 13, 1990

Agbayani, a Pangasinan gubernatorial candidate, filed pre-proclamation protest cases against his political rival Colet. When Colet was proclaimed as governor, Agbayani filed an election protest. Because of his pending pre-proclamation cases, he captioned his election protest ex abundante ad cautelam. The Comelec, acting on the election protest, required Colet to file a responsive answer. Agbayani then filed a reply, which he also captioned ad cautelam.

The Comelec dismissed Agbayani’s pre-proclamation cases and his motion for reconsideration. It said that the pre-proclamation controversy became moot and academic when Agbayani filed the election protest and his reply, even if they were both captioned ad cautelam.

Agbayani appealed to the Supreme Court. Ruling in his favor, the Court noted that Agbayani filed the election protest ad cautelam (or “for safety’s sake) just in case the Comelec dismissed his pre-proclamation cases. For the upcoming barangay elections, a Comelec resolution provided that all ballot boxes would be used for the barangay elections, unless they were not involved in any pre-proclamation-controversy, election protest, or official investigation. Agbayani thus wanted to preserve all the ballot boxes and their contents so that he could file an election protest later on. The Court said:

As the above-mentioned cases involved only nine precincts, it was only prudent for the petitioner to file his protest ad cautelam in case the pre-proclamation controversy was ultimately dismissed and it became necessary for him to activate his protest. The protest would involve all the precincts in the province. If he had not taken this precaution, an the other ballot boxes would have been emptied and their contents would have been burned and forever lost.

As to Agbayani’s filing of a reply, the Court said:

It was not the fault of the petitioner if the COMELEC decided to give due course to the protest right away even if it was ad cautelam. The protest was at that time only tentative, awaiting the disposition of the pre-proclamation controversy. The petitioner did file a reply to the private respondent’s answer with counter-protest, but it was only to prevent any declaration that he had by his inaction waived, the right to file responsive pleadings. Such a reply did not make the pre-proclamation controversy moot and academic.

Most indicative of the petitioner’s intention is the express reservation he made in the protest ad cautelam itself, where he clearly stated:
As additional precautionary measure, the protestant herein is filing this protest and cautela(m), without withdrawing his petitions in said pre-proclamation controversy, in order to exempt from the provisions of Section 1 of Resolution No. 2035 the precincts hereinafter specified. (Emphasis supplied)

[2] Francisco I. Chavez, Petitioner, versus Commission On Elections, Respondent. G. R. No. 105323, July 3, 1992. G. R. No. 105323, July 3, 1992

Former Solicitor General Francisco I. Chavez, a senatorial candidate in the 1992 elections, alleged that he lost at least 1.7 million votes because of a nuisance candidate with the same surname as his. On May 23, 1992, he filed an urgent petition before the Comelec asking it to [1] implement its May 12, 1992 resolution with costs de oficio; [2] to re-open the ballot boxes in 13 provinces including the National Capital Region involving some 80,348 precincts and to scan for the “Chavez” votes for purposes of crediting the same in his favor; [3] make the appropriate entries in the election returns/certificates of canvass; and [4] to suspend the proclamation of the 24 winning candidates.

Dissatisfied with the failure of the Comelec to act on his petition, Chavez filed with the Supreme Court an urgent Petition Ad Cautelam for prohibition and mandamus, with prayer for the issuance of a temporary restraining order, enjoining the Comelec from proclaiming the 24th highest senatorial candidate, without first implementing respondent Comelec’s resolution of May 12, 1992 and acting upon petitioner’s letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992.

On June 4, 1992, the Supreme Court issued a Temporary Restraining Order enjoining the Comelec from proclaiming the 24th winning senatorial candidate and setting the case for hearing on June 9, 1992. On the same day, Chavez filed a manifestation stating that on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by the Comelec. He also prayed that the Petition Ad Cautelam be considered a regular petition.

On June 8, 1992, Senator Agapito Aquino (the 24th ranked senator) filed a Motion for Leave to Intervene with Comment in Intervention praying for the dismissal of Chavez’s petition. Sen. Aquino argued that the petition was in the nature of a pre-proclamation controversy, which was not allowed in elections involving senators.

The Supreme Court ruled in Sen. Aquino’s favor, stating that Chavez’s proper recourse is to file a regular election protest which, under the Constitution and the Omnibus Election Code, exclusively pertains to the Senate Electoral Tribunal.

[3] Hongkong And Shanghai Banking Corporation Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 159590, October 18, 2004, and HSBC International Trustee Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 15959, October 18, 2004

Sometime in March 1997, Frederick Arthur Thomson (Thomson) issued five HSBANK checks amounting to HK$3,200,000.00, payable to Cecilia Diez Catalan (Catalan). When the checks were deposited, HSBANK returned them purportedly for reason of “payment stopped” pending confirmation, despite the fact that the checks were duly funded.

In January 2001, Catalan filed before the RTC a complaint for a sum of money with damages against HSBANK due to its alleged refusal to pay her the value of the checks issued by Thomson.

In September 2001, Catalan filed an Amended Complaint impleading petitioner HSBC TRUSTEE as co-defendant and invoking Article 19 of the Civil Code as basis for her cause of action. Catalan prayed that HSBANK and HSBC TRUSTEE be ordered to pay Php 20,864,000.00 representing the value of the five checks at the rate of Php 6.52 per HK$1 as of January 29, 2001 for the acts of HSBANK and HSBC TRUSTEE in refusing to pay the amount justly due her, in addition to moral and exemplary damages, attorney’s fees and litigation expenses.

HSBANK filed a motion for extension of time to file an Answer or a motion to dismiss. On October 2, 2001, HSBANK filed a Motion to Dismiss Amended Complaint alleging, among other grounds, that it did not submit to the jurisdiction of the RTC when it filed its motion for extension of time.

On the other hand, HSBC TRUSTEE, without submitting itself to the jurisdiction of the RTC, filed a Special Appearance for Motion to Dismiss Amended Complaint, questioning the jurisdiction of the RTC over it. HSBC TRUSTEE alleged that tender of summons through HSBANK Makati did not confer upon the RTC jurisdiction over it.

On May 15, 2002, the RTC issued an Order denying the two motions to dismiss. HSBANK and HSBC TRUSTEE filed separate motions for reconsideration but both were denied by the RTC in an Order dated December 20, 2002.

On February 21, 2003, Catalan moved to declare HSBANK and HSBC TRUSTEE in default for failure to file their Answer to the amended complaint.

On March 5, 2003, HSBANK and HSBC TRUSTEE filed separate “petitions for certiorari and/or prohibition” with the Court of Appeals (CA).

Subsequently, HSBANK and HSBC TRUSTEE filed before the RTC separate Answers ad cautelam, both dated March 18, 2003, as a “precaution against being declared in default and without prejudice to the separate petitions for certiorari and/or prohibition then pending with the CA”.

Among several grounds for their appeals, HSBANK and HSBC TRUSTEE alleged that the Court of Appeals committed serious error by holding that they had submitted to the jurisdiction of the trial court by filing an Answer to the Amended Complaint.

Issue: Did the RTC acquire jurisdiction over HSBANK and HSBC TRUSTEE when they filed their respective Answers ad cautelam?

The Supreme Court ruled:

Against HSBANK

In favor of HSBC TRUSTEE

The Rules of Court provides that a court generally acquires jurisdiction over a person through either a valid service of summons in the manner required by law or the person’s voluntary appearance in court.
HSBANK initially filed a Motion for Extension of Time to File Answer or Motion to Dismiss.
HSBANK already invoked the RTC’s jurisdiction over it by praying that its motion for extension of time to file answer or a motion to dismiss be granted. The Court has held that the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court.
Consequently, HSBANK’s expressed reservation in its Answer ad cautelam that it filed the same “as a mere precaution against being declared in default, and without prejudice to the Petition for Certiorari and/or Prohibition xxx now pending before the Court of Appeals” to assail the jurisdiction of the RTC over it is of no moment. Having earlier invoked the jurisdiction of the RTC to secure affirmative relief in its motion for additional time to file answer or motion to dismiss, HSBANK, effectively submitted voluntarily to the jurisdiction of the RTC and is thereby estopped from asserting otherwise, even before this Court.

In contrast, the filing by HSBC TRUSTEE of a motion to dismiss cannot be considered a voluntary submission to the jurisdiction of the RTC. It was a conditional appearance, entered precisely to question the regularity of the service of summons. It is settled that a party who makes a special appearance in court challenging the jurisdiction of said court, e.g., invalidity of the service of summons, cannot be considered to have submitted himself to the jurisdiction of the court. HSBC TRUSTEE has been consistent in all its pleadings in assailing the service of summons and the jurisdiction of the RTC over it.
Thus, HSBC TRUSTEE cannot be declared in estoppel when it filed an Answer ad cautelam before the RTC while its petition for certiorari was pending before the CA. Such answer did not render the petition for certiorari before the CA moot and academic. The Answer of HSBC TRUSTEE was only filed to prevent any declaration that it had by its inaction waived the right to file responsive pleadings.

More to come. For now, let me leave you with this quote from Congressman Ronnie Zamora. During the 2005 impeachment deliberations against GMA, Congressman Zamora said that his father told him: “Keep away from lawyers who start their sentences with ex abundanti ad cautela.”

Heirs and inheritance (Part 9): Last will must be probated; Preterition (when a compulsory heir is omitted in a last will)

2011-10-21T08:28:00.016+08:00

Legal procedures in the probate of a last will:

Rule 75 Production of Will; Allowance of Will Necessary
Rule 76 Allowance or Disallowance of Will
Rule 77 Allowance of Will Proved Outside of Philippines
Rule 78 Letters Testamentary and of Administration of Estate Thereunder
Rule 79 Opposing Issuance of Letters Testamentary; Petition and Contest for Letters of Administration
Rule 80 Special Administrators
Rule 81 Bonds of Executors and Administrators
Rule 82 Revocation of Administration, Death, Resignation and removal of Executors and Administrators
Rule 83 Inventory and Appraisal; Provision for Support of Family
Rule 84 General Powers and Duties of Executors and Administrators
Rule 85 Accountability and Compensation of Executors and Administrators
Rule 86 Claims Against Estate
Rule 87 Actions by and against Executors and Administrators
Rule 88 Payments of the Debts of the Estate
Rule 89 Sales, Mortgages, and Other Encumbrances of Property of Decedent
Rule 90 Distribution and Partition of the Estate

Philippine law requires that a last will, whether notarial or holographic, must be probated or allowed by a court before it can be given effect. Rule 75 of the Rules of Court states:

Sec. 1. Allowance necessary; Conclusive as to execution. - No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

The Register of Deeds will not transfer the titles of lands to the persons named in the last will unless they submit the court order approving the will.

The Regional Trial Court of the place where the testator (the person who executed the last will) died has jurisdiction over the probate of the will.

Within twenty days after knowing of the testator's death, the person who has custody of the will must deliver the will to the court or to the person named in the will as executor. In case of that person’s refusal to deliver the will, the court can impose a fine or order that person’s imprisonment until it is delivered.

Who may petition for the probate of the will?

Section 1 of Rule 76 states:

Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

What if a compulsory heir is omitted in a last will?

This situation leads to what is called in law as “preterition”. It is covered by Articles 854 and 855 of the New Civil Code of the Philippines.

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.

Simply stated, the probate court will not allow the preterition or omission of the compulsory heirs. The omitted heirs can compel the other heirs to contribute proportionally from their respective shares until their own shares have been satisfied.

The only way for compulsory heirs to be deprived of their inheritance is through a valid disinheritance. Please read my posts:

Heirs and inheritance (Part 8): Do inherited properties belong exclusively to the spouse who inherited them or to both spouses?

2011-10-07T11:16:00.013+08:00

Answer: It depends on what system of property relations governs the spouses, whether absolute community of property (ACP), conjugal partnership of gains (CPG), or complete separation of property.

For Filipinos who got married after August 3, 1988 (the date of effectivity of the Family Code of the Philippines), their system is most probably absolute community of property. Why? Because most Filipinos get married without knowing that they can choose their system of property relations.

Under the system of absolute community of property, all properties belonging to the man and woman, at the time of the celebration of their marriage, automatically become part of their community property (see Article 91 of the Family Code). All properties acquired during their marriage are also community property, with certain exceptions under Article 92.

So, assuming that the system of property relations between you and your spouse is absolute community of property (ACP):

If	then
(1) you inherited the property before the marriage …	it is part of the community property, even if: the title to the property still remains in the name of the person from whom you inherited the property; the title to the property has been transferred to your name; or the property remains titled in your name all throughout your marriage.
(2) you inherited the property during the marriage …	it is not part of the community property since it was acquired by gratuitous title as provided under Article 92 of the Family Code; the exception is when the testator (the person who gave you the property through a last will) expressly provided that it will be community property.

Heirs and inheritance (Part 7): Is property acquired before marriage the exclusive property of each spouse or does it belong to both spouses?

2011-10-03T07:48:00.009+08:00

Question: “I got married in 2001; some people in an online forum told me that properties acquired when I was single and titled in my name are still mine. Does my husband have any right to these properties? What will happen to these properties when I die?”

Answers:

[1] “I got married in 2001; some people in an online forum told me that properties under my name acquired when I was single are still mine.”

These people are wrong.

Most Filipinos are confused as to whether properties acquired before marriage are the exclusive property of each spouse or belong to both spouses. This confusion can be cleared up by:

determining what date the marriage was solemnized; if it was solemnized before August 3, 1988, then the applicable law is the New Civil Code of the Philippines, not the Family Code;
determining whether the man and woman, before they got married, agreed on a system of property relations that would govern them; if there was no agreement, then for marriages solemnized after August 3, 1988 (date of effectivity of the Family Code), absolute community of property is automatically the system.

The problem is that most Filipinos get married without knowing that they can choose among absolute community of property (ACP), conjugal partnership of gains (CPG), or complete separation of property.

Since you got married in 2001 (and it seems there was no agreement between you and your husband before you got married), then absolute community of property is automatically the system between yourselves. Under Article 91 of the Family Code, upon your marriage, all properties belonging to either you or your husband automatically became part of the community property.

Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.

For example, you bought a subdivision lot while you were single. The lot is titled in your name. At the time you got married, this lot automatically became part of the community property between you and your husband, even if the title remains in your name all throughout your marriage. If you are going to sell this subdivision lot, you will need your husband’s conformity since it has become community property.

Upon your death, this lot will be distributed as follows:

50% will go to your husband as his share in the community property;
50% will be divided among your heirs (if you have no children and your parents or grandparents are dead, then your husband will get 25% while your brothers and sisters will divide among themselves the other 25%, under Art. 1001 of the New Civil Code of the Philippines).

[2] When are properties acquired before marriage the exclusive property of each spouse?

Exception 1:

Exception 2:

If the man and woman before getting married agreed that their property relations would be governed either by conjugal partnership of gains (Articles 105 to 133 of the Family Code) or by complete separation of property (Article 143 to 146 of the Family Code).

Article 109 enumerates what the exclusive properties of each spouse are. Paragraph (1) expressly states that property “brought to the marriage as his or her own” is exclusive property.

If the marriage was solemnized before August 3, 1988 (date of effectivity of the Family Code), then properties acquired before marriage are the exclusive property of each spouse.

Why?

Because the New Civil Code of the Philippines (the prevailing law before the Family Code became effective) provided that in the absence of an agreement between the future spouses, the default system of property relations would be conjugal partnership of gains.

Precautions in buying real estate

2011-10-01T08:42:00.016+08:00

(Note: This post is part of my August 2009 article “Guidelines and precautions in buying church property” in another blog. You can download a free PDF of that article. The shortened version below is for the benefit of individuals buying real property.)

[1] Verify the title’s authenticity with the Register of Deeds; verify the seller’s identity

Get a certified true xerox copy of the land title. Do not depend on the copy provided by the landowner, even if it is certified. According to one media report, there are more than 100,000 fake land titles circulating in the Philippines.

If possible, check also if the person saying that he is the landowner is really the person mentioned as the registered owner. Meaning, the person saying that he is the landowner may just be posing as the real landowner. Ask for a valid ID.

If the title says that the registered owners are the parents of the person saying he is the landowner, that is a problem. There might be other heirs to that property. If there are several heirs claiming ownership of the land, and some heirs want to sell while others do not, that is a problem. The majority of the heirs cannot simply outvote those who do not want to sell. The heirs who want to sell must file a petition in court under Rule 69 of the 1997 Rules of Civil procedure.

If the landowner is married, then marital conformity is needed for the sale of the land.

If the person selling the land to you is merely an agent and not the registered owner, that is a problem. Ask to meet and deal with the real owner.

[2] Check the title for liens or encumbrances (adverse claim, notice of lis pendens, mortgage)

Check the back portion of the title to see if there are annotations for liens or encumbrances like adverse claim, notice of lis pendens, mortgage, etc. If there are liens or encumbrances on the title, then do not buy the property.

[3] Verify the title’s authenticity with the Land Registration Authority

If the copy of the title on file with the Register of Deeds is clean of any lien or encumbrance, then bring the certified copy of the title to the Land Registration Authority (LRA) in Quezon City, opposite the Land Transportation Office. Ask the LRA Task Force on Spurious Land Titles to verify if the title is genuine.

[4] Verify with the Assessor’s Office if the real estate taxes are paid up

If the LRA says that the title is genuine, then check with the Assessor’s Office if the “amilyar” or real estate taxes are paid up (no arrears or back taxes). If there are arrears, then talk to the landowner. You can propose for example to pay for the arrears but this should be part of the purchase price already. You need a written notarized document for this agreement on the payment of back taxes.

[5] Ask a geodetic engineer to survey the land and check the title’s technical description

Ask the landowner permission to have the land surveyed. The purpose is to determine the actual land area. If the title says that the land area is 2,000 square meters but the survey only shows that the area is 1,500 then you can ask for a proportional reduction in the price.

[6] Conduct an ocular inspection of the land

Check the land for potential problems (for examples, if the area is prone to floods, if the property has access roads or right of way, etc).

[7] Clarify with the seller who will pay the transfer taxes and notarial fee

Clarify with the landowner as to who will shoulder the payment of the taxes (transfer, capital gains, etc).

You have to clarify also with the landowner as to who will pay the notarial fee for the deed of sale. The notary public usually charges one percent of whatever the price mentioned in the deed is. For example, if the price mentioned in the deed of sale is two million pesos, the notary public will charge Php 20,000.00 as notarial fee.

[8] Have a paper trail of your payment

In the actual payment, paying in cash is not recommended. You must have a paper trail of your payment. You can ask your bank to issue a manager’s check or cashier’s check. Before signing the deed of sale, the landowner can verify from the bank if the check is genuine or is funded, etc.

“Dapat kaliwaan”, as we say in the vernacular. When you present the check for payment, the landowner must at the same time give you the title. After you receive the title, “dapat malinis na”. Meaning, all you have to do after paying and receiving the title, is to work on the transfer of the title to your name.

[9] Submit required documents with the Register of Deeds

In transferring the title to your name, you will have to submit all the documents to the Register of Deeds (RD). Beforehand, you need to get the confirmation receipts from the BIR and the Assessor’s office. If the documents are complete and the BIR and Assessor’s office issue the proper documents saying that the taxes have been paid, then the RD will now transfer the title to the church’s name.

[10] What to do if the land is donated to you

There is no such thing as “verbal donation” when it comes to lands. The New Civil Code of the Philippines requires donations worth more than five thousand pesos and the acceptance of such donation to be made in a notarized document. In a donation, the donor’s tax (20% of the value of the property) must be paid within 30 days from the time the deed of donation is executed.

[11] What to do if the landowner refuses to hand over the title despite your full payment

If you have fully paid for a property but the landowner refuses to hand over the title, you should file immediately an “affidavit of adverse claim” with the Register of Deeds. Within 30 days from the time the adverse claim was annotated, you must file a case in court either for:

specific performance (for the landowner to hand over the title), or
rescission (cancellation of the contract).

With either case, you can ask for attorney’s fees and damages.

[12] Paying by installment

In a contract of sale by installments, there is sometimes a part of the contract that provides for an “acceleration clause.” This means that failure to pay one or more installments will make the whole amount due and demandable. For example, you are bound to pay two million pesos in 24 monthly installments for the land. You paid the January and February installments, failed to pay the March installment, and then continued paying again. If there is an acceleration clause in the contract, then that failure to pay the March installment, for example, gives the landowner the right to demand that you pay the total sale price at once.

[13] Make sure the real estate developer complies with government regulations

If you are buying a subdivision lot, make sure that the developer has all the necessary government permits. Keep all receipts for payment.

Heirs and inheritance (Part 6): Settle the estate of your deceased spouse before marrying again

2011-09-26T12:03:00.011+08:00

Articles 103 and 130 of the Family Code provide that before getting married again, you must:

[1] liquidate the community property or the conjugal partnership, and

[2] settle the estate of your deceased spouse.

If you don’t do these things, your subsequent marriage will be governed automatically by the regime of complete separation of property under Articles 143 to 146 of the Family Code. In simple terms, you and your subsequent spouse will not have any community property or conjugal partnership property to speak of.

Why? The Family Code seeks to protect the heirs of the deceased spouse, especially the children, by preventing:

[a] the dissipation of the assets of the first marriage, and

[b] complications in determining which property belongs to what marriage.

If you are the child of a parent who wants to get married again after the death of your other parent, you can insist that your share in the inheritance first be given to you. If your parent refuses, as a final resort, you can file a petition for judicial settlement of your deceased parent’s estate.

Liquidating the community property and settling the estate of the deceased spouse

Liquidating the conjugal partnership property and settling the estate of the deceased spouse

Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Heirs and inheritance (Part 5): The right of legitimate children to inherit

2011-09-25T14:54:00.008+08:00

Situation A: Several years ago, several Filipino-Chinese brothers and sisters asked me about their eldest brother’s claim that under Chinese custom, only the eldest child is entitled to inherit, with other siblings, especially the sisters, not being entitled to anything.

I told these brothers and sisters that since they (and their parents) are Filipino citizens, they are all entitled to inherit from their parents under Article 979 of the New Civil Code of the Philippines.

Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.

Chinese customs or traditions cannot prevail over the express provisions of Philippine law.

Situation B: Jose and Myrna have two legitimate children, A and B. When Myrna died, Jose got married to Susan. Jose and Susan have three children, namely, C, D, and E. When Jose dies, who among his children will inherit?

Article 979 is clear that all of Jose’s children (from his marriage to Myrna and his marriage to Susan) will inherit from him.

Situation C: When the mother died, the father started dating a younger woman, spending lavishly for her and even giving her the mother’s jewelry. When the children objected, the father said that they do not have any right to inherit yet since he was still alive.

The father is wrong. What the children are asking for is their inheritance from their deceased mother. Their right to inherit from their mother began when she died, as provided under Article 777 of the New Civil Code of the Philippines.

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent.

Situation D: You are a father or mother and one of your children has led an immoral life or threatened your life. What can you do to prevent this prodigal child from inheriting from you?

You must execute a last will disinheriting this child based on Article 919 of the New Civil Code of the Philippines. The requirements for a valid disinheritance under Article 918 are very strict (see the graphic below); you must consult a very competent notary public.

Please read also the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the father executed a document entitled “Kasulatan ng Pag-Aalis ng Mana” where he disinherited his oldest child.

Requirements and grounds for a valid disinheritance (click the picture to see the clearer, enlarged view)

Related posts:

Heirs and inheritance (Part 4): Who inherits from an illegitimate child?

2011-09-22T07:28:00.017+08:00

Situation: An illegitimate child dies with no children, whether legitimate or illegitimate, and without a last will.

[1] If that illegitimate child was unmarried, then the biological father or mother will inherit. If both parents are still alive, they will inherit on a 50-50 basis under Article 993 of the New Civil Code of the Philippines.

Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike.

Question: What if you are an illegitimate child raised by your mother alone, with your biological father providing nothing at all? Can you prevent your father from inheriting from you?

Answer: If you die without a last will, then your deadbeat father will inherit from you under Article 993. You must therefore execute a last will disinheriting your father based on Article 920 of the New Civil Code of the Philippines. The requirements for a valid disinheritance under Article 918 are very strict (see the chart below); you must consult a very competent notary public.

[2] If the illegitimate child was married and the parents are also dead, then the spouse will inherit everything under Article 994 of the New Civil Code of the Philippines.

Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate.

If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half.

But as stated in the 2nd paragraph of Art. 994, if the deceased illegitimate child has illegitimate siblings, then the spouse will share the inheritance with them on a 50-50 basis. (The siblings will divide among themselves the 50% allotted to them.) If any of the illegitimate siblings had died beforehand, then the sons and daughters (the nephews and nieces of the illegitimate child) will inherit their deceased parent’s share.

Question: What if the illegitimate child was unmarried but has illegitimate siblings?

Answer: Although Article 994 does not state it, the illegitimate siblings (together with the nephews and nieces of any sibling who died beforehand) will inherit everything.

Requirements and grounds for a valid disinheritance (click the picture to see the clearer, enlarged view)

Heirs and inheritance (Part 3): Rights of illegitimate children when their parent dies without a last will

2011-09-21T07:34:00.016+08:00

Situation A: You and your siblings are illegitimate children. Your biological parent (father or mother) died with no spouse, no legitimate descendants (children or grandchildren, great-grandchildren), and no legitimate ascendants (parents, grandparents, or great-grandparents).

[1] Under Article 988 of the New Civil Code of the Philippines (NCC), you and your siblings will inherit everything.

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

Clarification: The live-in partner of an illegitimate child does not have any right to inherit but is entitled to share in the partnership property under Articles 147 and 148 of the Family Code.

Question: Art. 988 NCC provides that the parent’s ascendants must be legitimate. Let’s say Jose is illegitimate. He has an illegitimate child Rene. In turn, Rene has his own illegitimate child Nestor. If Rene dies, who will inherit - both his son Nestor and his father Jose, or Nestor alone?

Answer: Only Nestor will inherit. One basic principle under the NCC is “nearer excludes farther” which means that the relative closest in degree to the deceased will exclude from inheriting those who are farther away in degree. Another principle in determining who the heirs are is that we go down (descending line) first before going up (ascending line). If there are heirs in the descending line (children or grandchildren), they will exclude those in the ascending line (parents or grandparents). Thus, even if Jose and Nestor are both one degree away from Rene, Nestor (descendant) excludes Jose (ascendant) from inheriting.

[2] If any of your siblings died before your parent, the descendants (children or grandchildren, whether legitimate or illegitimate) of your deceased sibling will inherit by right of representation while you will inherit on your own right under Articles 989 and 990 of the New Civil Code of the Philippines.

Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation.

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent.

For example, you have two illegitimate siblings. If all three of you are alive, then you divide your parent’s estate by three. Let’s say, however, that one of your siblings, who has four children, died before your parent. You still divide the estate by three; the four children will divide among themselves the share that should have gone to their parent (your deceased sibling).

Situation B: What if your parent had illegitimate children from different partners?

Same answers as above.

Situation C: Your parent died with no spouse but with legitimate ascendants (parents, grandparents, or great-grandparents).

[1] You will share the estate with the ascendants on a 50-50 basis under Article 991 of the New Civil Code of the Philippines.

Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

For example, a person dies leaving one ascendant and five illegitimate children (whether from the same partner or different partners). The ascendant gets 50% of the estate, while the five illegitimate children will divide among themselves the other 50%.

[2] What if there are several ascendants left, for example, the father or the mother, and both grandparents? Will the grandparents also share in the inheritance? Based on the principle of “nearer excludes farther”, they will not inherit.

Situation D: You are illegitimate; your parent died with no ascendant but with one legitimate sibling. If that sibling died after your parent, can you inherit from this sibling by stepping into your parent’s place?

No, you cannot claim any inheritance from your parent’s sibling under Article 992 of the New Civil Code of the Philippines.

Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

This is known as the iron barrier between the legitimate and illegitimate sides of the family. For the same reason, your parent’s legitimate sibling cannot inherit from you.

Unfair credit card debt collection practices and their sanctions under BSP Circular No. 702, Series of 2010

2011-08-01T11:09:00.104+08:00

The Supreme Court ruled in Macalinao vs. BPI (2009) and numerous cases dating as far back as 1996 that 3% monthly or 36% yearly interest is excessive, iniquitous, unconscionable, and exorbitant.

Some tactics used by credit card companies or their agents in trying to collect are:

[1] sending a photocopy of the complaint for collection or “sum of money” prepared by the company’s lawyer, and making the card holder think that a case has already been filed in court; or

[2] in situations where the credit card holder is a teacher, calling up the school principal or department head about the teacher’s delinquent account; or

[3] calling up, verbally abusing and humiliating the card holder.

Unfair collection practices

The Bangko Sentral ng Pilipinas “Manual of Regulations for Non-Bank Financial Institutions” (MORNBFI, Subsections 4320Q.14, page 136, and 4301N.14, page 810) classifies the following as unfair collection practices:

The use or threat of violence or other criminal means to harm the physical person, reputation, or property of any person;
The use of obscenities, insults, or profane language which amount to a criminal act or offense under applicable laws;
Disclosure of the names of credit cardholders who allegedly refuse to pay debts;
Threat to take any action that cannot legally be taken;
Communicating or threat to communicate to any person credit information which is known to be false, including failure to communicate that a debt is being disputed;
Any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a cardholder; and
Making contact at unreasonable/inconvenient times or hours which shall be defined as contact before 6:00 A.M. or after 10:00 P.M., unless the account is past due for more than sixty (60) days or the cardholder has given express permission or said times are the only reasonable or convenient opportunities for contact.

If you are a school principal or department head and you receive a telephone call from collection agents about your teacher’s alleged delinquency, tell them that (1) they are violating the BSP regulation, and (2) you will encourage the teacher to file a complaint against them for unfair collection practices.

If you are the card holder and you were verbally abused by the card company’s staff or its collecting agent, you should file a complaint with the BSP’s Financial Consumer Affairs Group.

Additional protection for credit card holders under BSP Circular No. 702, Series of 2010

Section 4 of this circular released on December 15, 2010 amended the Manual of Regulations of Banks (Subsection X320.14) and MORNBFI, (Subsections 4320Q.14 and 4301N.14). The circular applies to all credit operations of banks and other BSP-supervised financial institutions to better protect all financial consumers, including credit card holders.

Sections 3 and 4 of the circular require credit card companies to:

[1] notify the card holder in writing of the endorsement of the collection to an agency at least seven days before the actual endorsement;

[2] give the defaulting credit card holder the name of the agent assigned to the account once they have endorsed the collection to a third-party;

[3] change all disclosure documents and marketing materials so that they are printed in plain language and in bold black letters against a white background using the Arial font and a minimum 12 point font size.

These new requirements protect the credit card holders:

by giving them enough time to consider what actions to take,
from being harassed by an unscrupulous collection agent who might use aliases or pseudonyms in order to avoid the sanctions for using unfair practices; and
by providing them with easily understood documents from the credit card companies.

Sanctions for credit card companies or their collection agents

The sanctions for unfair collection practices under Section 6 of the circular are:

First offense: Reprimand for the directors/officers responsible for the violation.

Second offense: Disqualification of the bank concerned from the credit facilities of the BSP except as may be allowed under Section 84 of R.A. No. 7653 (“New Central Bank Act”).

Subsequent offenses:
Prohibition on the bank concerned from the extension of additional credit accommodation against personal security; and
Penalties and sanctions under Sections 36 and 37 of RA 7653

Where to file the complaint for unfair collection practices

For further clarification and inquiries, please contact the Financial Consumer Affairs Group, Supervision and Examination Sector, Bangko Sentral Ng Pilipinas, 5th Floor, Multi-Storey Building, BSP Complex, A. Mabini St., Malate, Manila; e-mail address: consumeraffairs@bsp.gov.ph; Tel. Nos.: Direct Line: (+632)523-3631; Trunkline (+632)524-7011 local 2584

Practical and legal problems with BSP Circular No. 702, Series of 2010

[1] Shrewd and unscrupulous collection agents won’t use their office phone to call up the card holder or the school principal. Having caller ID won’t matter then. The agents can also say that it wasn't them who called up.

[2] Section 4 provides that the credit card company must notify the card holder in writing of the endorsement of the collection to an agency at least seven days before the actual endorsement. Does it mean sending the written notice by ordinary mail, registered mail, or personal service on the card holder? To prevent any circumvention or confusion, the circular should have provided instead that the notification must be made by registered mail at least seven days before the actual endorsement. Or, to really provide protection to the card holder, the circular should have required sending the notice by express registered mail.

[3] Section 6 states that “violations shall be subject to any or all of the following sanctions depending upon their severity”. The phrase “any or all of the following sanctions” is legally incorrect since the circular provides that the sanctions are to be imposed on a successive basis (first offense, second offense, subsequent offense). For example, the sanction of “Prohibition on the bank concerned from the extension of additional credit accommodation against personal security” cannot be imposed if the violation is only a first offense.

The phrase “depending on their severity” is a misplaced modifier. Does “depending on their severity” refer to the sanctions or to the violations? If the phrase refers to the violations, then the sentence should be edited to read “Depending on their severity, violations shall be subject to any or all of the following sanctions”.

Also, the phrase “depending upon their severity” creates a legal problem. Does it mean, for example, that “making contact at unreasonable/inconvenient times or hours” less severe than the “use or threat of violence or other criminal means to harm the physical person, reputation, or property of any person”?

Consider this situation: A credit card company has committed a third offense of unfair collection practice. The penalty prescribed by the circular is “Prohibition on the bank concerned from the extension of additional credit accommodation against personal security”. But if the violation, for example, is the less severe “making contact at unreasonable/inconvenient times or hours”, does this mean the BSP has the discretion to impose the lighter penalty of reprimand even if it is already a third offense?

[4] Section 3 of the circular requires that the table of fees, penalties and interest rates, and reminder to the cardholder in disclosure documents and marketing materials must be “printed in plain language and in bold black letters against a white background using the Arial font and a minimum 12 point font size”. But aside from the required typography, the circular does not discuss what “plain language” is or provide guidelines for the credit card companies to follow. (The circular itself is not written in plain language; I have posted my Plain Language before and after comparisons of this circular.)

Please read my posts:

[1] Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines

[2] BSP Circular No. 702, Series of 2010 (Plain English / Plain Language revisions)

Note: In the Flesch ease of reading scale, the higher the score, the more understandable the text is. A score between 30 to 40 means a text is “very difficult” to understand; between 40 to 50 (“difficult”); between 50 to 60 (“fairly difficult”); between 60 to 70 (“standard”); and between 70 to 80 (“fairly easy”). You can use MS Word’s Spelling and Grammar tool to check the Flesch readability score of any document.

To learn how the Flesch reading ease test score is calculated manually, please read paragraph (5) of the Florida Readable Language In Insurance Policies Law (Florida Stat. Ann. § 627.4145).

The only BSP document with a description of “plain language” is MORB Volume 2, Appendix 13 (page 229). The description isn’t from the BSP but from a Securities and Exchange Commission document titled “New Rules on the Registration of Long-Term Commercial Papers”. In the section on “Sales and Marketing Guidelines for Derivatives”, the SEC states:

For non-sophisticated clients, a bank should adopt a suitability statement explaining simply and clearly why the product offered is viewed suitable, considering the client’s needs and preferences. To ensure the statement will be effective, a bank should consider the following features:

Simple and plain language: when technical terms need to be incorporated, they should be explained if the client is unlikely to understand their meaning; and

Concise and clear messages: lengthy explanations and extensive statements are likely to reduce the effectiveness of the statement and make the client less likely to read the statement properly.

But this description is so lacking in detail; it is also merely a recommendation. What “simple and plain language” is varies from person to person, and Circular No. 702 does not provide a way of measuring if the credit card companies are complying with the plain language requirement. What’s needed is an objective criterion of what constitutes “plain language” in order to protect the card holders.

We can learn from the experience of US states like Colorado, Nevada, Montana, New Mexico, Nebraska, North Carolina, New Jersey, and Rhode Island. These states require that insurance policies (auto, life, health) and legal documents in general must have a minimum Flesch reading ease test score of 50. Colorado laws on the use of plain language are:

Beginning in August 2010, Rhode Island requires for all health insurance policies a Flesch reading ease test score of 65, the highest in the US.

Other US laws that provide subjective and objective criteria to ensure that consumers are protected are:

Connecticut Plain Language Law (Conn. Gen. Stat. § 42-152, promulgated in 1980) mandates that every consumer contract entered into after June 30, 1980, must be written in plain language. A contract is written plainly if it meets either the plain language test (subsection b) or an alternative objective test (subsection c).

Pennsylvania Plain Language Consumer Contract Act (Pa. Stat. Ann. tit. 73, § 2201, promulgated in 1993) provides a general rule, language guidelines, and visual guidelines to ensure that consumer contracts are easy to read and understand.

The BSP should consider adopting a criterion for readability based on these laws.

Even if Piolo and KC get married abroad, they cannot get a divorce later on

2011-07-26T06:46:00.008+08:00

Summary: Filipinos who get married in countries where divorce is valid cannot obtain a divorce later on, because of Article 15 of the New Civil Code of the Philippines.

Last night, my sister brought home a tabloid; in it, a columnist discussed some people’s suspicions as to why Piolo Pascual reportedly wants to marry KC Concepcion abroad. The reason, according to these people, is that there is no divorce in the Philippines. They say that if Piolo and KC (or any Filipino, for that matter) get married in a place where divorce is legal, they will be able to get a divorce later on since Philippine law does not apply abroad.

This reasoning is wrong.

Getting married abroad where divorce is legal will not enable a Filipino to validly get a divorce later on. Why? Art. 15 of the New Civil Code of the Philippines is the reason. The article states:

Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

Simply stated, Philippine laws on marriage, obligations between husbands and wives, parental authority over children, etc. are obligatory (binding) upon Filipinos wherever in the world they may be.

Principle of “lex loci celebrationis”

This Latin expression simply means “if a marriage is valid in the country where it is celebrated, it is valid here in the Philippines”. Art. 26, paragraph (1) of the Family Code of the Philippines states:

All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

For example, if a Filipino gets married (either to a fellow Filipino or to a foreigner) in a country where the marriage ceremony isn’t the same as in the Philippines, it is still considered valid here.

But the principle of “lex loci celebrationis” does not apply in situations where the Family Code has declared certain “marriages” as incestuous, bigamous, or void for reasons of morality or public policy. Thus, a marriage between Filipinos who are first cousins may be validly solemnized in some countries but such a marriage will not be recognized as valid here in the Philippines. Also, a marriage by a Filipino below 18 years of age may be valid in other countries but not here in the Philippines.

(Please take note that “lex loci celebrationis” applies to marriage, not divorce.)

Question: If a Filipino gets married abroad but the documents are not filed with the NSO through the Philippine embassy or consulate, is the marriage valid?

Answer: Yes, the marriage is valid for two reasons:

[1] Lex loci celebrationis;

[2] The marriage contract or certificate is not an essential or formal requisite of marriage under the Family Code.

Legal Procedures 26: After the last pleading or motion

2011-07-14T08:34:00.010+08:00

(Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.)

[1] After the last pleading is filed, the court decides on either one of the following:

A. Rendering of judgment based on the pleadings, or a summary judgment; or

B. Scheduling of the pre-trial conference upon motion of the plaintiff.

[2] Judgment on the pleadings (Rule 34); Summary judgment (Rule 35)

The plaintiff files a motion for judgment on the pleadings (complaint and answer), or a motion for summary judgment (pleadings, affidavits, depositions and admissions of the parties).

If the court grants the motion, it renders judgment. But if the court denies the motion, then the pre-trial conference is scheduled.

[3] The pre-trial conference is scheduled upon motion of the plaintiff. The motion states the desired day for the pre-trial. In practice, at least two dates must be suggested to accommodate the schedule of the court and of the opposing lawyer. The court is not bound by the suggested date.

After the defendant has filed the Answer, some judges issue an order scheduling the pre-trial conference. If you are a brand-new lawyer, make it a habit to talk to the court staff about the judge’s preferences or ways of doing things.

Note:

In some cases, upon the filing of the complaint, the plaintiff may ask the court to issue a temporary restraining order (TRO) and writ of preliminary injunction, requiring a party to either refrain from doing something or to perform a particular act.

Within 24 hours after receiving the records of the case or the sheriff’s return, the trial judge must grant or deny the application for a TRO. If granted, it is good only for 20 days and is automatically lifted after such period. During the effectivity of the TRO, the court may hear the petition for a writ of preliminary injunction. If the injunction is granted, it is effective for the terms and conditions specified by the court.

Please read my post “The ABS-CBN versus Willie Revillame case: What is a TRO?”.

BSP Circular No. 702, Series of 2010 on protection of credit card holders (Plain English / Plain Language revisions)

2011-07-09T11:08:00.074+08:00

US laws with subjective and objective criteria for readability:

[1] Paragraph (5) of the Readable language in insurance policies (Florida Stat. Ann. § 627.4145) on how the Flesch reading ease test score is calculated manually.

[2] Connecticut Plain Language Law (Conn. Gen. Stat. § 42-152, promulgated in 1980): alternative subjective and objective tests for readability.

[3] Pennsylvania Plain Language Consumer Contract Act (Pa. Stat. Ann. tit. 73, § 2201, promulgated in 1993): language and visual guidelines for readability.

Before	After
Subject: AMENDED REGULATIONS TO ENHANCE CONSUMER PROTECTION IN THE CREDIT CARD OPERATIONS OF BANKS AND THEIR SUBSIDIARY OR AFFILIATE CREDIT CARD COMPANIES	Subject: Amended Regulations to Enhance Consumer Protection in the Credit Card Operations of Banks and their Subsidiary or Affiliate Credit Card Companies

Plain English / Plain Language revisions:

Using all capital letters makes the text difficult to read. The intention to emphasize the subject matter’s importance is good but, as Bryan Garner, editor in chief of Black’s Law Dictionary, points out, “the effect of using all caps is to make the text harder to read and understand”. (Michigan Bar Journal, March 2010). Garner suggests using boldface or putting the text in a box.

Using all caps also leads to typographical errors since the spell check tool of some word processing programs doesn’t work with text in all caps.

Most people think that formatting in all caps makes a text conspicuous. But the US 9th Circuit Court of Appeals in its 2002 ruling in Darlene M. Bassett vs. American General Finance, Inc. (285 F.3d 882) debunked this claim about conspicuousness and the use of all caps:

[1] The BAP was troubled that the right-to-rescind statement is in lower case, but there is nothing magical about capitals. True, the UCC specifies that “[a] printed heading in capitals” is normally conspicuous. U.C.C. § 1 201(10) (emphasis added). This has given rise to the canard that all language in capitals is automatically conspicuous, and the fallacy that language not in capitals isn't conspicuous.

[2] The use of capitals as a talisman of conspicuousness has survived intact despite decades of improved literacy and technology. Even some web page “click-through” agreements have clauses written in capitals, though there are better ways of making text stand out in a web browser window. (Specht v. Netscape Communications Corp)

[3] Lawyers who think their caps lock keys are instant “make conspicuous” buttons are deluded. In determining whether a term is conspicuous, we look at more than formatting. A term that appears in capitals can still be inconspicuous if it is hidden on the back of a contract in small type. (Sierra Diesel, 890 F.2d at 114)

[4] Terms that are in capitals but also appear in hard-to-read type may flunk the conspicuousness test. (Lupa v. Jock’s)

[5] A sentence in capitals, buried deep within a long paragraph in capitals will probably not be deemed conspicuous. Formatting does matter, but conspicuousness ultimately turns on the likelihood that a reasonable person would actually see a term in an agreement. Thus, it is entirely possible for text to be conspicuous without being in capitals.

Plain English / Plain Language revisions:

“Pursuant to” is legalese; it’s better to use “under” or “in accordance with” according to “Plain English Lexicon” by Martin Cutts.

I deleted “hereby”. Cutts says about this word: “Liked by lawyers for its claimed ‘performative’ role in phrases like ‘I hereby declare...’, but many legal documents manage without it.”

Before	After
Pursuant to Monetary Board Resolution No. 1728 dated 02 December 2010, the provisions of the Manual of Regulations for Banks (MORB) and the Manual of Regulations for Non-Bank Financial Institutions (MORNBFI) are hereby amended, as follows:	Under Monetary Board Resolution No. 1728 dated 02 December 2010, the provisions of the Manual of Regulations for Banks (MORB) and the Manual of Regulations for Non-Bank Financial Institutions (MORNBFI) are amended, as follows:

Plain English / Plain Language revisions:

I deleted “hereby” and “thereof”. Plain English equivalent of “thereof” is “of it” (“Plain English Lexicon” by Cutts).

In Version 1, I retained the modifying phrase “on the requirement for banks/quasi-banks with credit card operations, to have written policies, procedures and internal control guidelines”, while in Version 2, I removed it completely.

Before

After

Section 1. The second paragraph of Subsection X320.2 of the MORB, and Subsections 4320Q.2 (2008-4337Q.2) and 4301N.2 of the MORNBFI on the requirement for banks/quasi-banks with credit card operations, to have written policies, procedures and internal control guidelines is hereby amended so as to delete Item “d” thereof.

Version 1

Section 1. The second paragraph of Subsection X320.2 of the MORB, and Subsections 4320Q.2 (2008-4337Q.2) and 4301N.2 of the MORNBFI on the requirement for banks/quasi-banks with credit card operations, to have written policies, procedures and internal control guidelines is amended so as to delete Item “d”.

Version 2

Section 1. Item “d” of the second paragraph of Subsection X320.2 of the MORB, and Subsections 4320Q.2 (2008-4337Q.2) and 4301N.2 of the MORNBFI is deleted.

Plain English / Plain Language revisions:

For obligations, “shall” should be replaced by “must”. Garner says: “The meaning of ‘shall’ changes from sentence to sentence. Courts have held that ‘shall’ can mean has a duty to, should, is, will, or may.”

Before	After
Banks/quasi-banks and their subsidiary or affiliate credit card companies shall not issue pre-approved credit cards.	Banks/quasi-banks and their subsidiary or affiliate credit card companies must not issue pre-approved credit cards.

Plain English / Plain Language revisions:

Since the early 1900s, various courts in the US, UK, and Australia have severely criticized the use of “and/or”. The Australian Supreme Court in a March 2010 case called “and/or” as “an embarrassing expression which endangers accuracy”. A UK court called “and/or” as a “bastard conjunction”.

Garner explains in his book on book on language and writing:

“The real problem with “and/or” is that it plays into the hands of a bad faith-reader. Which one is favorable? And or Or? The bad faith-reader can pick one or the other, or both -- whatever reading is better from that reader’s perspective.”

I replaced “ascertaining” with the simpler phrase “finding out”.

Instead of “in accordance with”, I used “in line with” (Plain Language Lexicon by Cutts).

I replaced the phrase “are financially capable of fulfilling their credit requirements” with “can fulfill their credit requirements”.

In After (Version 2), I removed the cross-reference (“in line with the provisions of Subsection X304.1/4304Q.1 (2008-4312Q.1)/4312N.1”). Prof. Joseph Kimble, editor in chief of The Scribes Journal of Legal Writing, founding director of the Center for Plain Language, and winner of two Burton Awards for Legal Achievement, explains in the Michigan Bar Journal (October 2007):

“Most readers will tell you, if you care to ask, that unnecessary cross-references are at least distracting and at worst irritating. They distract by cluttering the sentence and directing the reader’s attention elsewhere. And they irritate when the reader realizes that the reference was to something already known or entirely obvious.”

In After (Version 3), I changed the phrase “banks/quasi-banks or their subsidiary or affiliate credit card companies” since the two “or” may confuse readers. I used instead the phrase “banks/quasi-banks or their card companies (subsidiary or affiliate)”.

Before

After

Before issuing credit cards, banks/quasi-banks and/or their subsidiary/affiliate credit card companies must exercise, in accordance with the provisions of Subsection X304.1/4304Q.1 (2008-4312Q.1)/4312N.1, proper diligence by ascertaining that applicants possess good credit standing and are financially capable of fulfilling their credit requirements.

Version 1

Before issuing credit cards, banks/quasi-banks or their subsidiary or affiliate credit card companies must exercise, in line with the provisions of Subsection X304.1/4304Q.1 (2008-4312Q.1)/4312N.1, proper diligence by finding out if applicants possess good credit standing and can fulfill their credit requirements.

Version 2

Before issuing credit cards, banks/quasi-banks or their subsidiary or affiliate credit card companies must exercise proper diligence by finding out if applicants possess good credit standing and can fulfill their credit requirements.

Version 3

Before issuing credit cards, banks/quasi-banks or their card companies (subsidiary or affiliate) must exercise proper diligence by finding out if applicants possess good credit standing and can fulfill their credit requirements.

Plain English / Plain Language revisions:

The original paragraph has two sentences, with the first sentence having 89 words. Plain language experts and resources (Garner, Kimble, Cutts, “30 Suggestions to Improve Readability or How to Write for Judges, not like Judges” by Judge Mark Painter, “How to Write Clearly” from the European Commission, and “Plain English Good Practice Guide” from the Government of South Australia) recommend an average sentence length of 25 words or less.

I broke down the long paragraph by rewriting it, placing the enumeration at the end, not at the beginning, of the sentence (“Guidelines for Drafting and Editing Court Rules” by Garner).

I also used a vertical list. Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, August 2007):

“The vertical list is one of the drafter’s—and reader’s—best friends. Probably no other technique is more useful for organizing complex information, breaking it down into manageable chunks, avoiding repetition, and preventing ambiguity.”

The phrase “such as, but not limited to” is legalese and can be changed to “such as” without any negative legal effect.

In the phrase shall be “determined and used as basis for setting credit limits”, I changed the doublet “determined and used” into just one word “used”.

The phrase “net take home pay of applicants who are employed” seems to be synonymous with “gross monthly income less deductions for income taxes, premium contributions, loan amortizations, and other deductions”. Is there any other way of computing the net take home pay except by considering these deductions?

Before

After

The net take home pay of applicants who are employed, the net monthly receipts of those engaged in trade or business, or the net worth or cash flow inferred from deposits of those who are neither employed not engaged in trade or business or the credit behavior exhibited by the applicant from his other existing credit cards, or other lifestyle indicators such as, but not limited to, club memberships, ownership and location or residence and motor vehicle ownership shall be determined and used as basis for setting credit limits. The gross monthly income may also be used provided reasonable deductions are estimated for income taxes, premium contributions, loan amortizations and other deductions.

The following must be used as basis for setting credit limits:

net take home pay of applicants who are employed;
net monthly receipts of those engaged in trade or business;
net worth or cash flow inferred from deposits of those who are neither employed nor engaged in trade or business;
credit behavior exhibited by the applicants from their other existing credit cards; or
other lifestyle indicators such as:

club memberships;
ownership and location of residence;
motor vehicle ownership.

Plain English / Plain Language revisions:

The phrase “All credit card applications, specifically those solicited by third party representatives/agents” seems to use the word “specifically” wrongly. Could it be a typographical error with “specially” as the intended word? The word “all” negates “specifically”. If ALL credit card applications (whether solicited by the banks/quasi-banks, their subsidiaries or affiliates, or third party representatives/agents) must go through a strict assessment process, then there is no need for the qualifying phrase “specifically those solicited by third party representatives/agents”.

As I discussed above, when referring to obligations, you should use “must” instead of “shall”.

The phrase “representatives/agents” is redundant; either “representatives” or “agents” can be used alone.

“Thereon” is legalese; Cutts suggests the plain English alternative “on it”. I divided the paragraph into two sentences and instead of “thereon”, I used “the information stated on the application”.

In the phrase “validated and verified”, is there a legal or practical difference between the two? If something has been validated, should it still be verified? I don’t think there’s a real difference between these words; the phrase is redundant, and either word can be used alone.

Before	After
All credit card applications, specifically those solicited by third party representatives/agents, shall undergo a strict credit risk assessment process and the information stated thereon validated and verified by authorized personnel of the banks/quasi-banks and their subsidiary or affiliate credit card companies, other than those handling marketing.	All credit card applications must undergo a strict credit risk assessment process. The information stated on the application must be verified by authorized personnel, other than those handling marketing, of the banks/quasi-banks and their subsidiary or affiliate credit card companies.

Plain English / Plain Language revisions:

The amendment in Section 3 of the circular (excluding the paragraph “Transitory provisions”) is a very long paragraph with 235 words; what make it more complicated are the two provisos.

The sub-paragraph beginning with “A table …” has 112 words, with no period and ending with a semicolon after the phrase “application form and billing statement” in the proviso. I divided this long sub-paragraph into three sub-paragraphs, with sub-paragraph 1.2 as my revision of the proviso.

In the phrase “billing cycle/period”, is there really a legal or practical difference between cycle and period? Either word can be used alone.

In the phrase “payment of only the minimum amount due”, the word “payment” is a nominalization (“30 Suggestions to Improve Readability or How to Write for Judges, not like Judges” by Judge Painter, “How to Write Clearly” from the European Commission, and “Plain English Good Practice Guide” from the Government of South Australia). I edited the phrase to read “paying only the minimum amount due”.

I discussed above the reasons against using “and/or”. In paragraph 2 of Section 3, “interest and/or other charges” should be reworded as “interest or other charges, or both” (Scott P. Stolley, Michigan Bar Journal, August 2003).

Kimble in his article “Down with Provided That” (Michigan Bar Journal, July 2004) enumerates the criticisms made by legal drafting experts against provisos. Among others, Kimble cites:

[1] G.C. Thornton, Legislative Drafting 80, 81 (4th ed. 1996): ‘‘On both historical and grammatical grounds the proviso stands condemned. . . . The case against the proviso is established beyond reasonable doubt by the ambiguity and uncertainty of the phrase.’’

[2] Thomas R. Haggard, Legal Drafting in a Nutshell 279 (2d ed. 2003): ‘‘[P]rovided that . . . defies grammatical analysis. Provisos produce single sentences that are often hundreds of words long. Knowledgeable drafters have railed against them for years. Apart from being a grammatical abomination, provided that is ambiguous . . . .’’

[3] David Mellinkoff, Mellinkoff ’s Dictionary of American Legal Usage 520 (1992): ‘‘[The proviso] is one of the horrors of legal writing, in a class with notwithstanding.’’

Before

After

Banks/quasi-banks and their subsidiary or affiliate credit card companies shall also provide the following information to their cardholders:

A table of the applicable fees, penalties and interest rates on credit card transactions, including the period covered by and the manner of and reason for the imposition of such penalties, fees and interest; fees and applicable conversion reference rates for third currency transactions, in plain sight and language, on materials for marketing credit cards, such as brochures, flyers, primers and advertising materials, on credit card application forms, and on credit card billing statements: Provided, That these disclosures are in addition to the full disclosure of the fees, charges and interest rates in the terms and conditions of the credit card agreement found elsewhere on the application form and billing statement; and
A reminder to the card holder in the monthly billing statement, or its equivalent document, that payment of only the minimum amount due or any amount less than the total amount due for the billing cycle/period, would mean the imposition of interest and/or other charges;

Provided, That such table of fees, penalties and interest rates and reminder shall be printed in plain language and in bold black letters against a light or white background, and using the minimum Arial 12 theme font and size, or its equivalent in readability, and on the first page, if the applicable document has more than one page.

Banks/quasi-banks and their subsidiary or affiliate credit card companies must also provide the following information to their cardholders:

A table of (a) the applicable fees, penalties and interest rates on credit card transactions, including the period covered by and the manner of and reason for the imposition of such penalties, fees and interest, and (b) fees and applicable conversion reference rates for third currency transactions; and
A reminder to the card holder in the monthly billing statement, or its equivalent document, that paying only the minimum amount due or any amount less than the total amount due for the billing period, would mean the imposition of interest or other charges, or both.

These disclosures are in addition to the full disclosure of the fees, charges and interest rates in the terms and conditions of the credit card agreement found elsewhere on the application form and billing statement.

The table of fees, penalties and interest rates, and reminder must be printed:

on materials and documents for marketing credit cards such as brochures, flyers, primers and advertising materials, credit card application forms and billing statements; and
in plain language and in bold black letters against a light or white background, and using the minimum Arial 12 theme font and size, or its equivalent in readability, and on the first page, if the document has more than one page.

Plain English / Plain Language revisions:

In the phrase “collection agency/agent”, is there a legal or practical difference between agency and agent? Could “agency” mean an SEC-registered corporation and “agent” mean an individual? Either word can be used alone. Besides, the circular is not consistent since the next sentence uses the phrase “collection agency”, not “collection agency/agent”.

Foe brevity, I changed the phrase “required notification in writing” into “written notification”. From the context, it’s clear that the notice is “required”.

“Prior to” is legalese and the plain English equivalent “before should be used. Kimble says in A Modest Wish List for Legal Writing (79 Mich. B.J. 1574, 1577, 2000):

“Prior to takes the booby prize for the most common inflated phrase in legal and official writing. Why would anyone prefer it to before? Try to think of a single literary title or line that uses prior to . . . . By itself, prior to may seem insignificant. But it often leads to clumsy, indirect constructions . . . . More important, a fondness for prior to may indicate a fondness for jargon—and a blind resistance to using plain words. That resistance, that cast of mind, is in large part responsible for the state of legal writing.”

The part reading “of the endorsement of the collection of their account” uses the preposition “of” three times and may cause confusion. Kimble says: “Root out unnecessary prepositional phrases. Question every of. There’s no surer way to tighten legal writing than to eliminate unnecessary prepositional phrases. And as simple as it may sound, there’s no better indicator than the word of.” (Lessons in Drafting from the New Federal Rules of Civil Procedure, Part 4, from Michigan Bar Journal, November 2007) Kimble suggest three ways of eliminating an “of phrase”: using possessives, converting into adjectives, and converting into an –ing form.

Take note that in this section, the phrase “banks/quasi-banks and their subsidiary/affiliate credit card companies” is used. In other instances, the circular uses the phrase “banks/quasi-banks and their subsidiary or affiliate credit card companies”. The difference is that in the first phrase, the conjunction “and” is used. In the other instances, “or” is used. Does the circular mean that BOTH the banks/quasi banks and their subsidiary or affiliate credit card companies must send the notice to the card holder?

Grammatical error in the circular: “personnel” is plural and so “their” should be used instead of “his/her”.

Before

After

Banks/quasi-banks and their subsidiary/affiliate credit card companies shall inform their cardholders in writing of the endorsement of the collection of their account to a collection agency/agent, or the endorsement of their account from one collection agency/agent to another, at least seven (7) days prior to the actual endorsement. The notification shall include the full name of the collection agency and its contact details: Provided, That the required notification in writing shall be included in the terms and conditions of the credit card agreement. Banks/quasi-banks and their subsidiary/affiliate credit card companies shall adopt policies and procedures to ensure that personnel handling the collection of accounts, whether these are in-house collectors, or third-party collection agents, shall disclose his/her full name/true identity to the cardholder.

Banks/quasi-banks and their subsidiary/affiliate credit card companies must inform their cardholders in writing that they are endorsing the collection (1) to an agency, or (2) from one collection agency to another, at least seven days before the actual endorsement. The notification must include the full name of the collection agency and its contact details.

The written notice must be included in the terms and conditions of the credit card agreement.

Banks/quasi-banks and their subsidiary/affiliate credit card companies must adopt policies and procedures to ensure that collection personnel, whether in-house or third-party, disclose their full name or true identity to the cardholder.

Plain English / Plain Language revisions:

The phrase “depending on their severity” is a misplaced modifier; it also creates a legal problem. Does “depending on their severity” refer to the sanctions or to the violations? If the phrase refers to the violations (which is what I think the circular means), then the sentence should be edited to read “Depending on their severity, violations shall be subject to any or all of the following sanctions”. In my revision, I also replaced “shall be” to “are”.

Before	After
Section 6.Violations shall be subject to any or all of the following sanctions depending upon their severity.	Section 6. Depending on their severity, violations are subject to any or all of the following sanctions:

Plain English / Plain Language revisions:

The phrase “otherwise known as the” is used twice in this section. I deleted it because it is wordy.

Before	After
Section 7. Applicability of Other Laws. In addition to banking laws and BSP regulations, credit card transactions are also covered by other laws such as Republic Act (R.A.) No. 7394, otherwise known as the Consumer Act of the Philippines and R.A. No. 8484, otherwise known as the Access Devices Regulation Act.	Section 7. Applicability of Other Laws. In addition to banking laws and BSP regulations, credit card transactions are also covered by other laws such as Republic Act No. 7394 “Consumer Act of the Philippines” and Republic Act No. 8484 “Access Devices Regulation Act”.

Note: You’ll notice that I started some sentences in this post with the conjunction “But”. Our English teachers from kindergarten up to college have taught us never to begin a sentence with the conjunctions “And” or “But”. On the contrary, it is perfectly okay to begin sentences with these conjunctions. In his article “The Truth About Conjunctions as Sentence-Starters” (Michigan Bar Journal, August 2010), Mark Cooney cites current and past US Supreme Court justices who used “But” and “And” to start some of their sentences. These are Chief Justice Roberts, Stevens, Scalia, Kennedy, Thomas, Breyer, Ginsburg, Alito, Sotomayor, Oliver Wendell Holmes, Benjamin Cardozo, and Thurgood Marshall.

Related posts (Before and After revisions of selected government communications):

Heirs and inheritance (Part 2): Legitimes, free portions, and intestate shares

2011-07-03T21:07:00.008+08:00

[1] The New Civil Code of the Philippines (NCC), not the Family Code, governs the issues on inheritance.

[2] “Testate or testamentary succession” refers to situations where the person dies leaving a last will. The person who executes a last will is called the “testator”.

The share in the inheritance is called “legitime”. The NCC provides for compulsory heirs” or certain people to whom the testator is obligated to give their legitimes.

In computing the legitimes, the remaining portion of the estate is called the “free” portion. The testator can give this portion to anyone.

[3] “Legal or intestate succession” refers to situations where the person died without a last will; the share in the inheritance is called “intestate share”.

[4] “Extrajudicial settlement of estate” is a voluntary agreement among the heirs partitioning the estate (free of debts), executed before a notary public, and published once a week for three weeks in a newspaper of general circulation.

[5] A sole heir claiming the whole estate can file an“Affidavit of adjudication by sole heir” with the Register of Deeds (if real property is involved) or the BIR..

Posted below is a comparative table of legitimes and intestate shares.

Surviving heir	Legitime	Intestate share
Illegitimate children Surviving spouse	1/3 1/3 (Remaining 1/3 is free portion; Art. 894, NCC)	1/2 1/2
Illegitimate children Surviving spouse Legitimate parents	1/4 1/8 1/2 (Art. 899, NCC; testator may freely dispose of the remaining 1/8 of the estate.)	1/4 1/4 1/2
Illegitimate children Legitimate parents	1/4 1/2	1/2 1/2
Legitimate parents Surviving spouse	1/2 1/4 (taken from the free portion) (Art. 893, NCC)	1/2 1/2
Illegitimate parents Surviving spouse	1/4 1/4	1/2 1/2
Illegitimate children alone	1/2 (divided by number of illegitimate children) Remainder is free portion (Art. 901, NCC)	All
Legitimate parents alone	1/2; remaining half is free portion (Arts. 889 and 890, NCC)	All
Illegitimate parents alone	1/2	All
Surviving spouse alone	1/2, 1/3, 1/2 (Art. 900, NCC)	All
Legitimate children (or their descendants) alone	1/2 (divided by the number of children) Remaining half is free portion (Art. 888, NCC)	All
One legitimate child (or descendant) Surviving spouse	1/2 1/4 Remaining 1/4 is free portion (Art. 892, NCC)	1/2 1/2
Two or more legitimate children (or their descendants) Surviving spouse	1/2 (divided by the number of children) Equal to the share of one child Remainder is free portion (Art. 892, NCC)	Consider spouse as 1 legitimate child and divide estate by total number
Legitimate child Illegitimate child	1/2 1/2 of each legitimate child (Art. 176, Family Code) Remainder is free portion (Art. 892, NCC)	Please read Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half)
Surviving spouse Brothers and sisters (nephews and nieces, in case of deceased siblings)	1/2 (remaining half is free portion; Art. 900, NCC) Not entitled to anything since they are not compulsory heirs; testator may choose to give them something out of the free portion	1/2 1/2 (divided by the number of brothers and sisters; nephews and nieces of deceased siblings divide among themselves the share that should have to their parents) Art. 1001, NCC

Heirs and inheritance (Part 1): If your spouse dies without a last will, who will inherit?

Disinheriting your spouse

Disinheriting children and descendants, legitimate as well as illegitimate

Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half

Can nephews and nieces inherit from their grandparents, unmarried aunts or uncles?

Heirs and inheritance (Part 1): If your spouse dies without a last will, who will inherit?

2011-07-02T07:50:00.041+08:00

Definition of terms:

The New Civil Code of the Philippines (NCC), not the Family Code, governs the issues on inheritance.

“Testate or testamentary succession” refers to situations where the person dies leaving a last will; the share in the inheritance is called “legitime”.

“Legal or intestate succession” refers to situations where the person died without a last will; the share in the inheritance is called “intestate share”.

The person who dies and whose property is to be divided is called the “decedent”.

Related posts:

Situation A: You and your deceased spouse have children.

[1] Only you and your children are entitled to inherit under Article 996 of the New Civil Code of the Philippines. Your deceased spouse’s siblings, parents, or grandparents are excluded.

Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

If any or some of your children died before your spouse, their legitimate children will be entitled to inherit by right of representation.

(Read below the steps in computing the inheritance.)

[2] If your deceased spouse has illegitimate children, they are entitled to inherit under Article 176 of the Family Code. Please read my post on “how to compute the share of an illegitimate child”.

Situation B: You and your deceased spouse have no children.

[1] If your deceased spouse’s parents (either father or mother, or both) are still alive, then you and the parents will inherit under Article 997 of the New Civil Code of the Philippines.

Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

If your spouse’s parents are already dead but other “ascendants” (like grandparents or great-grandparents) are still alive, Article 997 will also apply. Your spouse’s siblings, if any, are not entitled to inherit.

[2] If your deceased spouse has illegitimate children, then you and the illegitimate children will inherit under Article 998 of the New Civil Code of the Philippines.

Art. 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.

In simpler terms, you will get 50% of the inheritance while the illegitimate children will divide among themselves the other 50%.

Article 998 applies even if your deceased spouse, at the time of death, had parents or siblings. Only you and the illegitimate children are entitled to inherit. If the illegitimate children died before your spouse, then you and the illegitimate children’s descendants (by right of representation) will inherit.

[3] If your deceased spouse has illegitimate children and “ascendants” (parents, grandparents, or great-grandparents), then you, the illegitimate children, and the ascendants will inherit under Article 1000 of the New Civil Code of the Philippines.

Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth.

In simpler terms, you will get 25% of the inheritance; your spouse’s illegitimate children will also get 25%; and the ascendants will get 50%.

Your spouse’s siblings, if any, are not entitled to inherit.

[4] If your deceased spouse has no ascendants (parents, grandparents, or great-grandparents) or illegitimate children, but has siblings, then you and the siblings will inherit under Article 1001 of the New Civil Code of the Philippines.

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.

In simpler terms, you will get 50% of the inheritance while the brothers and sisters will divide among themselves the other 50%.

The law does not distinguish between siblings of the full or half blood. If your deceased spouse’s father or mother had illegitimate children, these children cannot inherit from your spouse because of the “iron barrier” between the legitimate and illegitimate sides of the family.

If any of the siblings died before your spouse, then that sibling's legitimate children (meaning, your spouse’s nephews or nieces) will inherit by right of representation. These children will divide among themselves the share that should have gone to their parent (the deceased sbling).

[5] If your deceased spouse has no illegitimate children, siblings, or ascendants (parents, grandparents, or great-grandparents), then you inherit everything.

Notes:

[1] These articles do not apply if your marriage has been declared void, or you are the offending spouse in case of legal separation.

[2] Steps in computing the inheritance:

You must liquidate the community property (Articles 102 to 104 of the Family Code) or the conjugal partnership (Articles 129 to 33 of the Family Code).
The remaining portion will then be divided among the heirs.

Liquidating the community property

Liquidating the conjugal partnership property

Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

For example, you and your spouse have four children, and your spouse died leaving one million pesos in property.

Your share in the community property or conjugal partnership property is 50% or five hundred thousand pesos.
The remaining five hundred thousand pesos will be divided among the children, with you counted as one child.
Five hundred thousand pesos divided by five: you and the children will receive one hundred thousand pesos each as inheritance.

DepEd Order No. 88 s. 2010: Plain English / Plain Language revisions

2011-06-24T08:20:00.019+08:00

Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines”. (2) I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome. (5) These revisions are my own and are used only to illustrate Plain English principles. If there are conflicts between my revisions and the official DepEd Order, you must follow the Order.

The Department of Education issued the “2010 Revised Manual of Regulations for Private Schools in Basic Education” through DepEd Order No. 88 s. 2010. Posted below are my plain language revisions of this DepEd Order.

Before	After
1. This Department hereby issues the enclosed “2010 Revised Manual of Regulations for Private Schools in Basic Education” (2010 Revised Manual for brevity) for the guidance and compliance of all concerned stakeholders in basic private education.	1. We are issuing the enclosed “2010 Revised Manual of Regulations for Private Schools in Basic Education” (2010 Revised Manual for brevity) for the guidance and compliance of all stakeholders in basic private education.

Plain English / Plain Language revisions:

Instead of “This Department”, I used “We” because it is clear from the letterhead and logo that it’s the DepEd issuing the Order.

I deleted “hereby” since it adds nothing and nothing is lost by deleting it. (Drafting Wills, Trusts, and Other Estate Planning Documents: A Style Manual, by Kevin D. Millard)

George Hathaway, chair of the State Bar of Michigan's Plain English Committee since 1983, says about avoiding “hereby”:

“Law students usually write well, but when they get into actual practice, they switch. A fine example is the word hereby. You would be amazed at how many law students know they should not use the word hereby when writing their brief for a legal writing class; when they get out into practice, however, there are 49 other types of documents, and in those 49 other documents, they usually use the word hereby.”

Paragraph 1 of the Order states that for brevity, the manual should be referred to as “2010 Revised Manual”. Yet, paragraph 4 inconsistently uses the complete title “2010 Revised Manual of Regulations for Private Schools in Basic Education”.

I deleted the modifier “concerned” since stakeholders, by definition, would be concerned.

Before	After
2. Any part or provision of the enclosed 2010 Revised Manual, which may be held invalid or declared unconstitutional, shall not affect the effectivity and efficiency of operation and implementation of the remaining parts or provisions thereof.	2. Any part or provision of the 2010 Revised Manual that may be held invalid or declared unconstitutional will not affect the validity of its other parts or provisions.

Plain English / Plain Language revisions:

The expression “which may be held invalid or declared unconstitutional” (incorrectly) uses the relative pronoun “which” instead of “that”. In formal American English, “that” is used for restrictive clauses while “which” (surrounded by commas) is used for non-restrictive clauses. A clause is non-restrictive if it merely provides additional information and can be removed without changing the meaning. But in paragraph 2 of the Order, removing the “which” clause leads to this nonsensical statement:

“Any part or provision of the enclosed 2010 Revised Manual shall not affect the effectivity and efficiency of operation and implementation of the remaining parts or provisions thereof.”

In British English, there is no distinction between “that” and “which”. Most Filipinos, unaware of the difference between restrictive and non-restrictive clauses, use “which” instead of “that”. (I have also made this mistake on several occasions.) But to achieve precision in government communications, we must follow the American English distinction between the relative pronouns “that” and “which”. (Please read Jose Carillo’s English Forum article “Learning to use the relative pronouns confidently”.)

I used “will not” instead of “shall not”.

I used the single word “validity” instead of the wordy and pompous expression “effectivity and efficiency of operation and implementation”.

I deleted “thereof”.

Before	After
3. Any existing Department Circulars, Orders, Memoranda, such as the 1992 Revised Manual of Regulations for Private Schools (8th edition) issued as DECS Order No. 92. s. 1992 dated August 10, 1992, or any parts thereof which are contrary to or inconsistent with any provision of the enclosed 2010 Revised Manual shall be deemed repealed or modified accordingly.	3. The 2010 Revised Manual supersedes any contrary or inconsistent provisions of Department Circulars, Orders, Memoranda, such as DECS Order No. 92. s. 1992 dated August 10, 1992 (Revised Manual of Regulations for Private Schools, 8th edition).

Plain English / Plain Language revisions:

I used the word “supersedes” instead of the phrase “repealed or modified”.

The Order incorrectly uses the word “deemed” . Bryan A. Garner, editor in chief of Black’s Law Dictionary, in his book on language and writing says that “the word deem should create a legal fiction, not state a truth.”

In “Synthesis: Legal Reading, Reasoning and Writing in Canada” (by Margaret Elizabeth McCallum, Christina L. Kunz, Deborah A. Schmedem), the authors recommend:

Avoid use of the term “to deem” as a substitute for “to think” or “to consider”. The word means “to treat [a thing] as being something that it is not, or possessing certain qualities it does not possess”. In this technical sense, “deem” is used in statutes to create a legal fiction; for example, a statute that requires applications to be originals signed by the applicant may provide that faxed applications will be deemed to be originals.

Before	After
4. The enclosed 2010 Revised Manual of Regulations for Private Schools in Basic Education shall take effect beginning school year 2010-2011.	4. The 2010 Revised Manual of Regulations will take effect beginning school year 2010-2011.

Plain English / Plain Language revisions:

The word “enclosed” is used four times in this Order to modify the 2010 Revised Manual. After paragraph 1 where the word is first used, “enclosed” should no longer have been used. All references to the 2010 Revised Manual cannot possibly refer to any other manual. Yet, paragraph 4 inconsistently uses the complete title “2010 Revised Manual of Regulations for Private Schools in Basic Education”.

Before	After
5. Immediate dissemination of and strict compliance with this Order is hereby directed.	5. We direct all stakeholders to immediately disseminate and comply with this Order.

Plain English / Plain Language revisions:

“Immediate dissemination of and strict compliance with this Order is hereby directed” is boilerplate text written in the passive voice. I rewrote it using the active voice.

Related posts (Before and After revisions of selected government communications):

Pantawid Pasada Program guidelines (Plain English / Plain Language revisions)

2011-06-21T10:55:00.042+08:00

Before

After

GUIDELINES FOR CARD USE (GFCU) FOR THE PANTAWID PASADA PROGRAM (PPP)

PURPOSE: THE DEPARTMENT OF ENERGY (DOE) ISSUES THIS GFCU PURSUANT TO SECTION 16, RULE IV OF THE IMPLEMENTING RULES AND REGULATIONS OF EXECUTIVE ORDER NO. 32, SERIES OF 2011.

I. OWNERSHIP

The Pantawid Pasada Card (“CARD”) is the property of the Government of the Republic of the Philippines.

II. RESPONSIBILITIES OF THE BENEFICIARY

The BENEFICIARY’s use of the card shall be deemed his acceptance of the provisions of this GFCU. The BENEFICIARY shall take care of the CARD and shall ensure that the CARD is used in accordance with the GFCU.

III. CARD & LOAD VALIDITY

Unless voluntarily returned by the BENEFICIARY, earlier terminated by the DOE, reported lost to the DOE, or recalled by the DOE, the CARD shall be valid from May 2011 to May 2016. Any load of the CARD shall revert to the Government of the Republic of the Philippines if unused within six (6) months from the date of the last loading.

IV. USAGE

The CARD shall only be used for fuel purchases at petroleum retail outlets or gasoline stations displaying “PANTAWID PASADA CARD ACCEPTED HERE”. The CARD is transferrable. However, the CARD can only be used with the jeepney with the corresponding plate number as indicated in the CARD.

V. CARD-RELATED INFORMATION & ISSUES

The BENEFICIARY shall report to the DOE within twenty four (24) hours from the occurrence of any of the following: (a) loss of the CARD, (b) rejection of the CARD, and (c) other analogous situations. In case of LOSS, the BENEFICIARY can secure a replacement CARD upon submission of an affidavit of loss: Provided, however, that should the loss be due to the negligence or fault of the BENEFICIARY, the BENEFICIARY shall be answerable for the replacement costs. For all other cases, the BENEFICIARY can secure a replacement CARD only upon surrendering the CARD. For more information, connect with the DOE via:

Call : (02) 984-6381
Email : ptap@doe.gov.ph
Text Only:
Globe: 0917 556-0759; 0917 480-3488
Smart: 0947 392-5378
Sun: 0932 778-6494
Website: www.doe.gov.ph/pantawid

VI. AMENDMENTS

The DOE may, at any time and for whatever reason it may deem proper, amend, revise or modify this GFCU and such amendment shall be effective upon its publication in a newspaper of general circulation.

VII. RESTRICTIONS

The actual CARD must be presented prior to fuel purchase. Petroleum retail outlets or gasoline stations should only honor the CARD if used for the vehicle bearing the plate number indicated in the CARD. The load of the CARD shall be voided should the CARDS be tampered with.

VIII. OTHER TERMS AND CONDITIONS

The DOE reserves the right to terminate the use and privileges of the CARD at any time and for whatever reason. Likewise, the DOE can cause the surrender of the CARD without need of prior notice and the BENEFICIARY agrees to surrender the CARD upon demand to any authorized DOE representative. The BENEFICIARY agrees to hold Government of the Republic of the Philippines and/ or the DOE free and harmless from any claim for damages arising from such termination.

Guidelines for beneficiaries in using the Pantawid Pasada Program (PPP) Card Purpose:

The Department of Energy (DOE) issues these guidelines under Section 16, Rule IV of the Implementing Rules and regulations of Executive Order No. 32, Series of 2011.

I. Ownership of the Card

The Pantawid Pasada Card (“Card”) is the property of the Government of the Republic of the Philippines.

II. Your responsibilities as PPP beneficiary

If you use this Card, you are bound by these guidelines. You must take care of this Card and use it according to these guidelines.

III. Card and load validity

The Card is valid from May 2011 to May 2016 unless:

you voluntarily return it; or
you report its loss to the DOE; or
the DOE terminates the Card at an earlier date; or
the DOE recalls the Card.

If you do not use the Card within six months from the date you last loaded it, any remaining load will go back to the Government of the Republic of the Philippines.

IV. How to use the Card

You can only use the Card to purchase fuel at petroleum retail outlets or gasoline stations displaying “PANTAWID PASADA CARD ACCEPTED HERE”.

The Card is transferable to another driver. But it can only be used with the jeepney whose plate number is marked in the Card.

V. Card-related information and issues

You must report to the DOE within twenty four hours any of the following:

you lost the Card;
petroleum retail outlets or gasoline stations reject the Card; or
other similar situations

If you lose your Card, you can get a replacement after filing an affidavit of loss. If the loss is due to your negligence or fault, you must pay the costs of the replacement.

For all other cases, you can get a replacement only when you surrender the Card.

For more information, connect with the DOE via:

Call : (02) 984-6381
Email : ptap@doe.gov.ph
Text Only:
Globe: 0917 556-0759; 0917 480-3488
Smart: 0947 392-5378
Sun: 0932 778-6494
Website: www.doe.gov.ph/pantawid

VI. Amendments

The DOE may amend, revise or modify these guidelines. The changes in the guidelines become effective upon their publication in a newspaper.

VI. Restrictions

You must present the Card before buying fuel.

Petroleum retail outlets or gasoline stations will honor the Card only if it’s used for the vehicle bearing the plate number marked in the Card.

The load of the Card shall be voided if it’s tampered with.

VIII. Other terms and conditions

The DOE can terminate the use and privileges of the Card at any time and for any reason. It can demand, without prior notice, that you surrender the Card to any authorized DOE representative.

You agree not to sue the Government of the Republic of the Philippines or the DOE if it terminates the Card.

Plain English / Plain Language revisions:

I turned the headings which were in all capital letters to caps and lower case, and highlighted them instead by boldfacing.

I used the pronoun “you” to directly address the user (called the “Beneficiary” in the official guidelines).

I used the simpler word “under” to replace the legalese “pursuant to”.

I used bulleted lists for clarity.

I used “But” instead of “However”. The original sentence is “However, the CARD can only be used with the jeepney with the corresponding plate number as indicated in the CARD.” I edited it into “But it can only be used with the jeepney whose plate number is marked in the Card.”

I could have used the pronoun “we” instead of the initials DOE but I left them as they are.

Using all capital letters makes the headings and terms difficult to read. Bryan Garner, editor in chief of Black’s Law Dictionary, points out, “the effect of using all caps is to make the text harder to read and understand”. (Michigan Bar Journal, March 2010). Garner suggests using boldface or putting the text in a box.

Using all caps also leads to typographical errors since the spell check tool of some word processing programs doesn’t work with text in all caps.

Most people think that formatting in all caps makes a text conspicuous. But the US 9th Circuit Court of Appeals in its 2002 ruling in Darlene M. Bassett vs. American General Finance, Inc. (285 F.3d 882) debunked this claim about conspicuousness and the use of all caps:

[1] The BAP was troubled that the right-to-rescind statement is in lower case, but there is nothing magical about capitals. True, the UCC specifies that “[a] printed heading in capitals” is normally conspicuous. U.C.C. § 1 201(10) (emphasis added). This has given rise to the canard that all language in capitals is automatically conspicuous, and the fallacy that language not in capitals isn't conspicuous.

[2] The use of capitals as a talisman of conspicuousness has survived intact despite decades of improved literacy and technology. Even some web page “click-through” agreements have clauses written in capitals, though there are better ways of making text stand out in a web browser window. (Specht v. Netscape Communications Corp)

[3] Lawyers who think their caps lock keys are instant “make conspicuous” buttons are deluded. In determining whether a term is conspicuous, we look at more than formatting. A term that appears in capitals can still be inconspicuous if it is hidden on the back of a contract in small type. (Sierra Diesel, 890 F.2d at 114)

[4] Terms that are in capitals but also appear in hard-to-read type may flunk the conspicuousness test. (Lupa v. Jock’s)

[5] A sentence in capitals, buried deep within a long paragraph in capitals will probably not be deemed conspicuous. Formatting does matter, but conspicuousness ultimately turns on the likelihood that a reasonable person would actually see a term in an agreement. Thus, it is entirely possible for text to be conspicuous without being in capitals.

Related posts (Before and After revisions of selected government communications):

Small Claims Cases: Someone owes you a hundred thousand pesos or less and refuses to pay?

2011-05-21T10:00:00.006+08:00

That’s bad news. The good news is, you do not need to get a lawyer to file a collection case for you, thanks to the “Small Claims Cases” project of the Supreme Court.

The “Small Claims Cases” is a special procedure where money claims for a hundred thousand pesos or less are heard. The process is quick and inexpensive; the procedure is simple and informal. No lawyers are allowed. Forms for the complaint and the defendant’s answer are freely available, in English and Filipino. The hearing and the judge’s decision are completed in one day.

At the moment, however, this procedure is available only in 22 first-level courts (Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts) in the following cities: Manila, Makati, Pasay, Quezon City, Caloocan, Pasig, Antipolo, Bacoor (Cavite), Baguio, Angeles, San Fernando, Cabanatuan, Malolos, San Pablo, Angeles, Bacolod, Iloilo, Zamboanga, Cagayan de Oro, Davao, and Gen. Santos.

For more information, please browse the following PDFs:

DSWD Travel Clearance for Minors (Plain English / Plain Language revisions)

2011-04-28T09:21:00.025+08:00

Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines”. (2) I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome. (5) These revisions are my own and are used only to illustrate Plain English principles. If there are conflicts between my revisions and the official DSWD guidelines on travel clearance for minors, you must follow the official guidelines.

DSWD Travel Clearance for Minors (Plain English revision)

Note: The pronouns “you” and “I” refer to the parent, legal guardian or person (other than the minor) applying for the minor’s travel clearance.

Travel Clearance for Minors

A travel clearance is a document issued to a Filipino child (below 18 years of age) traveling abroad alone or with someone other than the child’s parents.

When does my minor child need a travel clearance?

Your minor child needs a travel clearance when:
traveling alone to a foreign country; or
traveling to a foreign country accompanied by a person other than you.

When does my minor child not need a travel clearance?

Your minor child does not need a travel clearance when:

1. Traveling to a foreign country
with either you or your spouse, or
with you as a solo parent, or
with the legal guardian.
2. You and your spouse are
in the Foreign Service, or
living abroad, or
immigrants.
In number 2, your minor child must have a valid pass such as a dependents visa/pass/identification card or a permanent resident visa/pass/identification card. This document proves your minor child is living with you abroad and the travel does not constitute child trafficking.

Is a married minor required to get a travel clearance?

Article 35, paragraph 1of the Family Code states that no person below 18 can get married even with parental consent. If your minor child has gotten married by some means, a travel clearance is still required. (Please read Article 35 of the Family Code below.)

What are the requirements in getting a travel clearance?

1. Duly accomplished application form;

2. Photocopy of the birth certificate or passport of the minor;

3. Written consent of both parents or the solo parent or the legal guardian permitting the child to travel alone or with someone else to a foreign country;

4. Photocopy of passport of minor child’s traveling companion;

5. Two colored passport size photos of the minor taken within the last 6 months.

6. As appropriate:
photocopy of the marriage certificate of the minor’s parents; or
photocopy of the certificate of legal guardianship of the minor; or
photocopy of the solo parent identification card from the municipal social welfare and development office or Tallaq or Fasakh Certification from the Shariah court or any Muslim Barangay or religious leader;
in the case of an illegitimate minor, the mother’s certificate of no marriage (CENOMAR) from the National Statistics Office;
in the case of a deceased parent, a photocopy of the death certificate.

Is there a validity period for a travel clearance?

The clearance is valid from the date of issuance either for a period of one year or two years. It is valid for multiple travels within the period, as long as the conditions under which the clearance was issued have not changed. If a condition has changed, like a change in traveling companion, your minor child must obtain a new travel clearance.

How much is the processing fee for the clearance?

The fee is:
Php 300.00 with validity of one year.
Php 600.00 with validity of two years.

Where can I obtain the application forms? Where should I file the application?

You can obtain the application forms from:
any DSWD Field Office; or
the DSWD website.
You should file the application, together with the supporting documents, at any DSWD Field Office.

What is the procedure?

1. On the appointed date, you should go to the Field office which processed your application.

2. You must submit the original copy of your supporting documents, and pay the processing fee.

3. The clearance certificate will be released afterwards.

Other Frequently Asked Questions

Does a minor with a permanent residency card need a travel clearance?

No.

Does a minor born abroad but with no residency card need a travel clearance?

It depends on the minor’s citizenship or residency.

If then
the minor is not a Filipino citizen and holds a foreign passport …
a travel clearance is not required.

the minor is a Filipino citizen and living abroad but does not hold a permanent resident visa/pass/identification card …
a travel clearance is required.

Who can give the consent for the travel of a totally orphaned minor who has no appointed legal guardian?

1. The grandparent, whether paternal or maternal, may issue the consent even without a guardianship order from the court. If there are several grandparents, the Family Court has to appoint which grandparent will exercise parental authority. (Please read Article 214 of the Family Code below.)

2. In cases where both the paternal and maternal grandparents are deceased, the relatives acting as guardians of the minor must secure a guardianship order from the court.

My minor child is the subject of an ongoing custody battle between me and my spouse. Can a travel clearance be issued?

We will not issue a travel clearance to your child. The exception is when the court issues an order allowing your child to travel abroad with either you or your spouse, or with an authorized guardian.

To prevent your minor child from traveling abroad without your consent or a court order, you must ask the Bureau of Immigration to include your child in the watchlist of minors traveling abroad. The Bureau of Immigration is responsible for ensuring that no child under the watchlist order leaves the country.

I am the mother of an illegitimate minor child. Can a travel clearance be issued to my child even while I am still applying for the visa in the embassy?

Under Article 176 of the Family Code, you have sole parental authority over your child.
If your child will be traveling with you, no travel clearance is required.
If your child will be traveling with a person other than you, a travel clearance is required.
(Please read Article 176 of the Family Code below.)

I am the biological father of an illegitimate minor child. The mother has abandoned the child. What are the requirements for the travel clearance?

Since the mother has the absolute parental authority over her illegitimate children, you need to get a court order giving you parental authority over the child.

If the court grants parental authority to you, then:

if the child will be traveling with you …
travel clearance is not required
if the child will be traveling alone or with someone other than you …

travel clearance is required.

The parents are residing abroad. Is a faxed copy of their consent acceptable?

Yes, a faxed copy is acceptable. A computer generated photo of minors and emailed documents are also acceptable.

Relevant provisions of the Family Code of the Philippines

Article 35, par. 1 of the Family Code

The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

Article 35, paragraph (1)

The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

Article 176

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.

Article 214

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

Related posts (Before and After revisions of selected government communications):

Public Attorney's Office guidelines (Plain English / Plain Language revisions)

2011-04-27T10:04:00.037+08:00

Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines”. (2) I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome. (5) These revisions are my own and are used only to illustrate Plain English principles. If there are conflicts between my revisions and the official DSWD guidelines on travel clearance for minors, you must follow the official guidelines.

Plain English revisions:

I used the pronoun “you” to directly address the user, and pronoun “we” to refer to the office.

I broke up the original one long paragraph into four short paragraphs.

I used a bulleted list for clarity.

Before

After

The Merit Test

Under PAO M.C. No. 18 series of 2002, a case shall be considered meritorious if an assessment of the law and evidence on hand discloses that the legal services of the office will assist or be in aid of or in the furtherance of justice, taking into consideration the interests of the party and those of the society. In such cases, the Public Attorney should agree to represent the party concerned. On the other hand, a case is deemed unmeritorious if it appears that it has no chance of success, or is intended merely to harass or injure the opposite party or to work oppression or wrong. In such situation, the Public Attorney must decline the handling of the case. A Public Attorney may represent an indigent client even if his cause of action is adverse to a public officer, government office, agency or instrumentality provided the case is meritorious. Caution should however be exercised that the office be not exposed to charges of harassment, unfairness or undue haste in the filing of suits. In criminal cases, the accused enjoys the constitutional presumption of innocence until the contrary is proven. Hence, cases of defendants in criminal actions are considered meritorious.

The Merit Test

We will assess your case based on the law and evidence. If our services will render justice to you and our society, we will handle your case.

As long as your case is meritorious, we will help you even if your opponent is a public officer, agency or instrumentality.

If you are the defendant in a criminal case and cannot afford a private lawyer, we will accept your case.

We will not, however, accept your case if:

it has no chances of winning in court, or
it will harass or injure the opposite party, or
it will cause oppression or wrong.

Plain English revisions:

I used the pronoun “you” to directly address the user, and avoided legalese by using simple words.

Before

After

The Indigency Test

Pursuant to PAO MEMORANDUM CIRCULAR NO. 02 Series of 2010 dated January 27, 2010 and entitled as "AMENDING SECTIONS 3, 4, and 5, ARTICLE II OF MEMORANDUM CIRCULAR NO. 18, S. 2002 (Amended Standard Office Procedures in Extending Legal Assistance)" in relation to the provisions of Republic Act (RA) No. 9406 enacted by Congress and approved by Her Excellency President Gloria Macapagal-Arroyo on March 23, 2007 and its Implementing Rules and Regulations dated July 14, 2008, the Indigency Test set forth in Section 3, Article II, MC No. 18, S. 2002, is hereby amended to read as follows:

Indigency Test. – Taking into consideration recent surveys on the amount needed by an average Filipino family to (a) buy its “food consumption basket” and (b) pay for its household and personal expenses, the following applicant shall be considered as an indigent person:

1. If residing in Metro Manila, whose net income does not exceed Php14,000.00 a month;

2. If residing in other cities, whose net income does not exceed Php13,000.00 a month;

3. If residing in other places, whose net income does not exceed Php 12,000.00 a month.

The term “net income” as herein employed shall be understood to refer to the income of the litigant less statutory deductions.

Statutory deductions shall refer to withholding taxes, GSIS, SSS, Pag-Ibig, Health Insurance and Philhealth premiums as well as mandatory deductions.

For purposes of this Section, ownership of land shall not per se constitute a ground for disqualification of an applicant for free legal assistance in view of the ruling in Juan Enaje vs. Victorio Ramos, et al. (31 SCRA 141, G.R. No. L-22109, January 30, 1970) that the determinative factor for indigency is the income of the litigant and not his ownership of real property.

The Indigency Test

You are considered indigent:

If you are residing in Metro Manila, your net income does not exceed Php14,000.00 a month;
If you are residing in other cities, your net income does not exceed Php13,000.00 a month;
If you are residing in other places, your net income does not exceed Php 12,000.00 a month.

The term “net income” refers to your income less deductions like withholding taxes, GSIS, SSS, Pag-Ibig, Health Insurance, and Philhealth premiums, as well as mandatory deductions.

You are considered indigent even if you own real property.

Plain English revisions:

I used the pronoun “you” to directly address the user.

I used pronoun “I” for the question heading.

I avoided legalese and jargon (like “jurisdiction”) by using equivalent, simple words.

Before

After

How to avail of services of the PAO

To ensure that only those qualified shall be extended free legal assistance, the applicant shall be required to execute an Affidavit of Indigency and to submit any of the following documents:

1. Latest Income Tax Return or pay slip or other proofs of income; or

2. Certificate of Indigency from the Department of Social Welfare and Development, its local District Office, or the Municipal Social Welfare and Development Office having jurisdiction over the residence of the applicant; or

3. Certificate of Indigency from the Barangay Chairman having jurisdiction over the residence of the applicant.

How can I avail of services of the PAO?

You must execute an Affidavit of Indigency and submit any of the following documents:

Latest Income Tax Return, or pay slip, or other proofs of income; or
Certificate of Indigency from the Department of Social Welfare and Development, its local District Office, or
the Municipal Social Welfare and Development Office of the place where you live; or
Certificate of Indigency from the Chairman of the barangay where you live.

Related posts (Before and After revisions of selected government communications):

PDIC notice to Banco Filipino depositors (Plain English / Plain Language revisions)

2011-04-26T11:10:00.039+08:00

Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines”. (2) I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome. (5) These revisions are my own and are used only to illustrate Plain English principles. If there are conflicts between my revisions and the official DSWD guidelines on travel clearance for minors, you must follow the official guidelines.

Notice to Depositors of Banco Filipino and Schedule of Depositors Forum (original version)

Depositors with accounts of P5,000 and below, who have no outstanding loans and whose addresses are updated in the Bank’s records, need not file deposit insurance claims.

PDIC will send payment in the form of postal money order (PMO) directly to depositors with valid accounts of P5,000 and below through registered mail. PMOs may be encashed in more than 1,400 postal offices and more than 300 Land Bank branches nationwide.
Depositors with accounts above P5,000; and depositors with P5,000 and below, who have outstanding loans and whose addresses are not updated in the Bank’s records are required to file deposit insurance claims. Claim Forms will be distributed during Depositors Forums to be conducted nationwide.
Only depositors with accounts above P5,000; and depositors with P5,000 and below, who have outstanding loans and whose addresses are not updated in the Bank’s records need to attend the Depositors Forum. Those with P5,000 and below, who have no outstanding loans and whose addresses are updated in the Bank’s records, need not attend the Depositors Forum.

Plain Language revisions using an If/Then table

If your account is …	then ...
above P5,000	1. you need to attend the Depositors Forum; and 2. you must file a deposit insurance claim. Note: Claim Forms will be distributed during the Depositors Forums to be conducted nationwide; see the schedule below.

If your account is ...	and	then ...
P5,000 and below	you have no outstanding loan; and your address is updated in the Bank’s records	you do not need to attend the Depositors Forum; you do not need to file a deposit insurance claim; and we will send to you by registered mail the payment in postal money order (PMO); you can encash the PMO in more than 1,400 postal offices and more than 300 Land Bank branches nationwide.

Text only Plain English revisions using headings, active voice, pronouns “I” in the question heading and “you” to directly address the user, and vertical lists for clarity

Who does not need to file a deposit insurance claim?

You do not need to file a claim if your account is P5,000 and below, and:

you have no outstanding loans, and
your address is updated in the Bank’s records.

We will send you by registered mail the payment in postal money order (PMO). You can encash the PMO in more than 1,400 postal offices and more than 300 Land Bank branches nationwide.

Who needs to file a deposit insurance claim and to attend the Depositors Forum?

You need to file a claim and attend the forum if:

your account is above P5,000; or
your account is P5,000 and below, you have an outstanding loan, and your address is not updated in the Bank’s records.

Where can I get a Claim Form?

You may get the form:

during the Depositors Forum;
from the branch where you maintained your account; or
from the PDIC website, www.pdic.gov.ph.

Related posts (Before and After revisions of selected government communications):

RA 9994 Expanded rights of senior citizens (Plain English / Plain Language revisions)

2011-04-25T08:52:00.025+08:00

Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines”. (2) I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome. (5) These revisions are my own and are used only to illustrate Plain English principles. If there are conflicts between my revisions and the official DSWD guidelines on travel clearance for minors, you must follow the official guidelines.

Plain English revision: I used the pronoun “you” to directly address the user.

Before	After
Who are entitled to the benefits and privileges granted under RA 9994? All Filipino residents who are 60 years old and above are entitled to the benefits and privileges granted RA 9994. It may cover elderly “dual citizens” who can prove Filipino citizenship and at least 6 months residency in the Philippines.	Who are entitled to the benefits and privileges granted under RA 9994? If you are a Filipino resident 60 years old and above, you are entitled to the benefits and privileges under RA 9994. If you are a “dual citizen”, you must also prove (1) your Filipino citizenship and (2) at least six months residency in the Philippines.

Plain English revision: I used a vertical list to break up the paragraph and to make things clearer.

Before	After
Who are entitled to the benefits and privileges granted under RA 9994? All Filipino residents who are 60 years old and above are entitled to the benefits and privileges granted RA 9994. It may cover elderly “dual citizens” who can prove Filipino citizenship and at least 6 months residency in the Philippines.	Who are entitled to the benefits and privileges granted under RA 9994? If you are a Filipino resident 60 years old and above, you are entitled to the benefits and privileges under RA 9994. If you are a “dual citizen”, you must also prove: (1) your Filipino citizenship, and (2) at least six months residency in the Philippines.

Plain English revisions: I used the pronoun “I” in the question heading. I used short, simple words like “use” instead of “availing” or “utilizing”. I deleted the word “preclude”. I turned the verbose paragraph into a one word answer.

Before	After
Does availing of the 20% senior citizens discount on hospitalization or medical services preclude utilizing PHILHEALTH benefits at the same time? No, a senior citizens discount on hospitalization and/or medical services can be availed of separately. Thus, PHILHEALTH coverage can still be utilized on top of the 20% senior citizens discount.	Can I use the 20% senior citizens discount on hospitalization or medical services and my PHILHEALTH benefits at the same time? Yes.

Plain English revisions: I used the pronouns “I” in the question heading and “you”to address the user; I avoided legalese like “owing to the limitation”, and used a vertical list for clarity. I edited the redundant phrases “duly authorized representative” and “a document specifically authorizing the representative”. I used “But” instead of “However” to start the last sentence (original sentence used 30 plus words while the edited sentence uses ten words only).

Before

After

Can bedridden or incapacitated senior citizens avail of discounted purchases through a representative?

Yes, but senior citizens can send their duly authorized representative to purchase their medicines and grocery items only. However, the representative must carry the senior citizen’s OSCA ID, the senior citizen’s purchase booklet, a document specifically authorizing the representative, and a doctor’s prescription when necessary.

However, discounted food purchases cannot be by proxy or through a representative owing to the limitation that it should be for the exclusive use and enjoyment, or “personal consumption” of the senior citizen only.

If I am bedridden or incapacitated, can I make discounted purchases through my representative?

Yes, you can send your representative to buy medicines and grocery items. Your representative must present your:

senior citizen’s OSCA ID;
purchase booklet;
letter of authorization, and
doctor’s prescription when purchasing medicines.

But you cannot make discounted food purchases through your representative.

Related posts (Before and After revisions of selected government communications):

PVAO educational benefits (Plain English / Plain Language revisions)

2011-04-21T10:41:00.029+08:00

Notes: (1) Please read my post “Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines”. (2) I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details. (3) For interactive grammar exercises, please visit my “Better English for everyone” website; I also have interactive quizzes on Plain English / Plain Language. (4) If the tables do not look right, try using Mozilla Firefox or Google Chrome. (5) These revisions are my own and are used only to illustrate Plain English principles. If there are conflicts between my revisions and the official PVAO guidelines on educational benefits, you must follow the official guidelines.

Plain English revisions: using pronouns “I” for the user in the question heading and “you” to directly address the reader; an If/Then table; legalese like “heretofore” is replaced by the simpler word “previously”; and other revisions in the text.

Educational Benefits

How can I avail of the benefits?

If you are one of the persons listed below:	and	then ...
(1) Veteran of the Philippine revolution against Spain and the Philippine-American War; (2) Veteran of the Philippine Army or of any recognized or deserving guerrilla organization that participated in the resistance movement or in the liberation drive during World War II from December 8, 1941 to December 2, 1945; (3) Veteran of the Philippine Expeditionary Forces to Korea (PEFTOK) during the period from September 15, 1950 to May 31, 1955; (4) Veterans of the Philippine Civic Action Group or Philippine contingent in Vietnam (PHILCAG) during the period from August 31, 1964 to December 1969. (5) The unmarried spouse of a deceased veteran; or (6) (a) A direct descendant of a veteran who renounces the benefit in your favor; (b) or a direct descendant of the deceased veteran, and the surviving spouse of the veteran or your legal guardian applies for the benefit in your favor. Note: Only one descendant can avail of the benefits.	you have not previously enjoyed educational benefits under the laws of the Philippines or the United States,	upon certification of the Administrator, you may be admitted to any school, college, university or institution authorized by the Government.

Related posts (Before and After revisions of selected government communications):

Plain Language, Plain English, or Plain Writing for government offices and private businesses in the Philippines

2011-04-18T10:26:00.097+08:00

Index of topics:

(Note: I conduct a 3 to 4 hour seminar for government offices or private companies that want to train their staff in Plain English / Plain Language. Please email me at gtgalacio@yahoo.com for details. For interactive grammar exercises, please visit my “Better English for everyone” website; posted below are links to my interactive quizzes on Plain English / Plain Language.)

Since the late 1970’s and early 1980’s, various private groups (like the Plain English Campaign in the UK) and national governments (like Australia) have been pushing for and implementing “Plain Language” programs. Also referred to as “Plain English” or “Plain Writing”, plain language programs seek to make laws and regulations clear so that the public “can find what they need, understand what they read, and use it to fulfill their needs”.

Definitions of Plain English / Plain Language

[1] By Professor Robert Eagleson ( Sydney, Australia)

“Plain English is clear, straightforward expression, using only as many words as are necessary. It is language that avoids obscurity, inflated vocabulary and convoluted sentence construction. It is not baby talk, nor is it a simplified version of the English language.

“Writers of plain English let their audience concentrate on the message instead of being distracted by complicated language. They make sure that their audience understands the message easily.”

[2] By Martin Cutts, author of “The Plain English Guide” (1995)

“Plain English is the writing and setting out of essential information in a way that gives a co-operative, motivated person a good chance of understanding the document at first reading, and in the same sense that the writer meant it to be understood.”

[3] International Plain Language Working Group (Clarity International, PLAIN, and Center for Plain Language)

“A communication is in plain language if it meets the needs of its audience - by using language, structure, and design so clearly and effectively that the audience has the best possible chance of readily finding what they need, understanding it, and using it.” (Clarity Number 64, November 2010)

Countries that have adopted plain language programs

Plain Language programs are not limited to the English language. For examples, Sweden has its Plain Swedish program (Klarspak), Canada has a plain language program in French for Quebec lawyers, and Mexico has “Lenguaje ciudadano”. Since the 1980's, numerous countries have adopted plain language programs to better serve their citizens. These are:

US (Plain Writing Act of 2010; Section 1311, subsection 3, paragraph B of Patient Protection and Affordable Care Act of 2010, the use of plain language in health plans)
Australia (Victoria Law Reform Commission, 1980’s; Corporations Law Simplification Program and the Tax Law Improvement Project, 1990’s)
Canada (Legislative Drafting Convention; Lawyers for Literacy Project; Employment Insurance Legislation - Readability Project)
UK (Inland Revenue’s Tax Law Rewrite 1996: Capital Allowances Act 2001, Income Tax (Earnings and Pensions) Act 2003, Income Tax - Trading and Other Income - Act 2005)
New Zealand (Law Commission and Parliamentary Counsel Office)
Ireland (Statute Law Revision)
Scotland (Law Commission)
Sweden (Office of the Director-General for Legal Affairs)
European Union (its executive body, the European Commission, has a plain language campaign called “Fight the Fog”)
South Africa (National Credit Act of 2005, Section 22 of National Consumer Protection Act of 2011)
Singapore (In 1996, the Board of Legal Education introduced plain English into the Postgraduate Practice Law Course, a 5-month full time course that culminates in written examinations. The PLC is compulsory for admission to the bar in Singapore; Legal Writing Programme, National University of Singapore, 2001)
Malaysia (CICC Model Terms of Construction Contracts for Sub-Contract Works, 2007)
Portugal (SIMPLEGIS)
Mexico (“Lenguaje ciudadano” or Citizen Language, 2004)

October 13: International Plain Language Day

International Plain Language Day (IPLD) takes place on October 13. People and organizations will be hosting events online, in offices and on the streets to mark their support for putting readers first in communication by using plain language. You can read more about the various grassroots activities planned on the IPLD Facebook page. (Source: Pikestaff 52, a publication of Plain Language Commission)

Benefits of Plain Language for government offices

In the US, the Office of Management and Budget implements the Plain Writing law. In its final guidelines, the OMB states that plain language:

improves public understanding of government communications;
saves money and increase efficiency;
reduces the need for the public to seek clarification from agency staff;
improves public understanding of agency requirements and thereby assist the public in complying with them;
reduces resources spent on enforcement;
improves public understanding of agency forms and applications and thereby assist the public in completing them; and
reduces the number of errors that are made and thus the amount of time and effort that the agency and the public need to devote to correcting those errors.

Benefits of Plain Language for private businesses

The US Securities and Exchange Commission has been implementing a Plain English program since 1998. In its free PDF “A Plain English Handbook: How to create clear SEC disclosure documents”, the SEC states the benefits for private businesses in using Plain English:

Many companies have switched to plain English because it’s a good business decision.
Companies that communicate successfully with their investors form stronger relationships with them. These companies save the costs of explaining legalese and dealing with confused and sometimes angry investors.
Plain English versions are easier to read electronically than legalese.

The SEC also explains that using Plain English benefits everyone:

Investors will be more likely to understand what they are buying and to make informed judgments.
Brokers and investment advisers can make better recommendations to their clients if they understand documents easily.
Lawyers reviewing plain English documents catch and correct mistakes more easily.

Warren Buffett, world’s richest man in 2008, endorses Plain English

Buffett is an American investor, industrialist and philanthropist. He was ranked as the world’s richest person in 2008 and is the second richest person in the world as of 2011. In the preface to the “SEC Plain English Handbook” mentioned above, he endorses the use of Plain Language:

This handbook, and Chairman Levitt’s whole drive to encourage “plain English” in disclosure documents, are good news for me. For more than forty years, I’ve studied the documents that public companies file. Too often, I’ve been unable to decipher just what is being said or, worse yet, had to conclude that nothing was being said.If corporate lawyers and their clients follow the advice in this handbook, my life is going to become much easier.

There are several possible explanations as to why I and others sometimes stumble over an accounting note or indenture description. Maybe we simply don’t have the technical knowledge to grasp what the writer wishes to convey. Or perhaps the writer doesn’t understand what he or she is talking about. In some cases, moreover, I suspect that a less-than-scrupulous issuer doesn’t want us to understand a subject it feels legally obligated to touch upon.

Perhaps the most common problem, however, is that a well-intentioned and informed writer simply fails to get the message across to an intelligent, interested reader. In that case, stilted jargon and complex constructions are usually the villains.

This handbook tells you how to free yourself of those impediments to effective communication. Write as this handbook instructs you and you will be amazed at how much smarter your readers will think you have become.

Perhaps the most common problem, however, is that a well-intentioned and informed writer simply fails to get the message across to an intelligent, interested reader. In that case, stilted jargon and complex constructions are usually the villains.

This handbook tells you how to free yourself of those impediments to effective communication. Write as this handbook instructs you and you will be amazed at how much smarter your readers will think you have become.

Write with a specific person in mind. When writing Berkshire Hathaway’s annual report, I pretend that I’m talking to my sisters. I have no trouble picturing them: Though highly intelligent, they are not experts in accounting or finance. They will understand plain English, but jargon may puzzle them. My goal is simply to give them the information I would wish them to supply me if our positions were reversed.

To succeed, I don’t need to be Shakespeare; I must, though, have a sincere desire to inform.

Measurable benefits of using Plain English in government offices and private businesses

Prof. Joseph Kimble, Cooley College of Law, Michigan, USA, is a world-recognized authority on Plain Language. He is also the president of Clarity International, a worldwide organization of lawyers and other individuals committed to the use of Plain Language. His classic study is “Plain Language: Writing for Dollars, Writing to Please” published in The Scribes Journal of Legal Writing, 1997. In the study, Prof. Kimble cited testimonials from officials at trade associations (American Council of Life Insurance, American Gas Association) and at businesses (Shell Oil, Target Stores, Pfizer, Sentry Insurance, Bank of America, General Motors) on the benefits of Plain Language:

Plain Language streamlines procedures and paperwork, makes it easier to train staff, and increases staff productivity and morale.
It reduces confusion, complaints, and claims, and it improves customer satisfaction.
It increases sales and raises the company’s standing in the marketplace.

In his study, Prof. Kimble cited several examples of the economic benefits of using Plain Language:

The US Navy estimated plain English could save it between $250–$300 million every year.
General Electric saved $275,000 by redrafting manuals into plain English.
The US Department of Veterans Affairs saved $40,000 redrafting one standard letter into plain English.
Federal Express, in revising its operations manuals, saved the company $400,000 in the first year.
Alberta Agriculture, Food, and Rural Development, in revising its forms, saved $3.5 million.
Customers in three surveys of standard letters from banks unanimously preferred the plain English versions.
British Telecom cut customer queries by 25 percent by using plain English.
The Royal Mail (British postal service) saved £500,000 in nine months by redesigning one form in plain English.
A UK Government Plain English initiative saved £9 million in printing costs.

“How Plain English Works for Business: Twelve Case Studies” by the Office of Consumer Affairs, U.S. Department of Commerce

This March 1984 study reveals how some companies benefited by simplifying their consumer documents. Their use of plain English improved their corporate image and competitive position, as well as streamlined their procedures, eliminated unnecessary forms, and reduced customer complaints. These companies and their Plain English documents or programs are:

Citibank, N. A. (simplified promissory note)
Home Owners Warranty Corporation
J. C. Penny Company, Inc. (consumer information guide)
Pfizer, Inc. (healthcare education program)
Roche Laboratories/Hoffman-LaRoche Inc. (medication education)
Shell Oil Company (“Come to Shell” information campaign)
Target Stores
Aetna Life & Casualty (Plain English programs)
American Council of Life Insurance (understandable life and health insurance policies)
Insurance Information Institute (consumer information brochures)
Sentry Insurance
St. Paul Fire and Marine Insurance Company

Former US Vice-President Al Gore: “Plain Language is a civil right.”

Health literacy and Plain Language

What is health literacy?

The Patient Protection and Affordable Care Act of 2010, Title V, defines health literacy as the degree to which an individual has the capacity to obtain, communicate, process, and understand basic health information and services to make appropriate health decisions.

Health literacy is the use of a wide range of skills that improve the ability of people to act on information in order to live healthier lives. These skills include reading, writing, listening, speaking, numeracy, and critical analysis, as well as communication and interaction skills. Health literacy allows the public and personnel working in all health-related contexts to find, understand, evaluate, communicate, and use information. (Calgary Charter on Health Literacy, 2008)

Connection between health literacy and plain language

[1] Plain language is a strategy for making written and oral information easier to understand. It is one important tool for improving health literacy. (Quick Guide to Health Literacy)

[2] Plain Language: A Promising Strategy for Clearly Communicating Health Information and Improving Health Literacy (Office of Disease Prevention and Health Promotion, US Department of Health and Human Services)

[3] Plain language: a strategic response to the health literacy challenge, by Sue Stableford and Wendy Mettger, from Journal of Public Health Policy, Vol. 28, No. 1 (2007), pp. 71-93

Low health literacy is a major challenge confronting American and international health organizations. Research in the past decade has documented the prevalence of limited literacy and limited health literacy skills among adults worldwide. This creates a major policy challenge: how to create text-based health information - a common method of health communication - that is accessible to the public. Plain language is a logical, flexible response. While touted by American, Canadian, and European health policy makers, adoption and promotion of plain language standards and skills in health-focused organizations have lagged. Most text-based health information continues to be too hard for most adults to read. Barriers to more rapid diffusion of plain language are reflected in a set of myths perpetuated by critics. These myths are identified and refuted. While plain language is only one of many broad-based solutions needed to address low health literacy, the benefits to everyone demand increased use by health organizations.

View more presentations from Ed_doc_Peggy

Basic principles of Plain Language

According to Prof. Kimble, the basic principles of Plain Language are:

[1] Plain Language means clear and effective communication - the opposite of legalese - and it has a long literary tradition. It does not mean baby talk or dumbing down the language.

[2] Plain Language and precision are complementary goals, not antagonists.

[3] Plain Language is not subverted by the need to use technical terms or terms of art.

[4] Plain Language is not just about vocabulary. Rather, it involves all the techniques for clear communication:

planning the document;
designing it;
writing clear sentences;
using plain words; and
testing the document whenever possible on typical readers.

Plain Language is not simplistic and does not “dumb down” the writer and reader

The Office of the Scottish Parliamentary Counsel clarifies what plain language is all about:

[1] Plain language does not tend to come naturally to the author of any work and the legislative drafter is no exception.

[2] Only the clearest thinkers and writers can absorb the most complicated subject-matters and present information in a way which is accessible to a wide audience.

[3] The end product may look easy to write - the reality is that it is much more difficult to simplify than to complicate when writing about a complex topic.

[4] Skill and time are both essential if writing is to be made clearer.

US SEC clarifications and description of Plain English

As stated above, the US SEC has been implementing a Plain English program since 1998. In its handbook, the SEC explains what Plain English is all about:

[1] Plain English writing does not mean deleting complex information to make the document easier to understand. For investors to make informed decisions, disclosure documents must impart complex information.

[2] Using plain English assures the orderly and clear presentation of complex information so that investors have the best possible chance of understanding it.

[3] Plain English means analyzing and deciding what information investors need to make informed decisions, before words, sentences, or paragraphs are considered.

[4] A plain English document uses words economically and at a level the audience can understand.

[5] Sentence structure is tight.

[6] Tone is welcoming and direct.

[7] Design is visually appealing.

[8] A plain English document is easy to read and looks like it’s meant to be read.

A Plain English / Plain Language program for government offices and private businesses in the Philippines

[1] Last week of February, I wrote to several members of the House of Representatives asking them to enact a law (similar to the US Plain Writing Act of 2010) requiring the use of Plain English in all government communications. I have not yet received any reply, however.

Currently, the only Plain Language initiatives in the Philippines are two bills filed by Senator Miriam Defensor-Santiago. These bills are:

Senate Bill no. 1770 “Plain Language in Health Insurance Act”
Senate Bill No. 1859 Plain Language Act “An Act To Enhance Citizen Access To Government Information And Services By Establishing That Government Documents Issued To The Public Must Be Written Clearly And In Plain Language”

SB no. 1770 “mandates any health insurance issuer, health plan, and government health care program to use plain language in preparing insurance documents”. On the other hand, SB no. 1875 seeks to improve the effectiveness and accountability of government agencies to the public by promoting clear communications that the public can understand and use.

Sales and Marketing Guidelines for Derivatives

For non-sophisticated clients, a bank should adopt a suitability statement explaining simply and clearly why the product offered is viewed suitable, considering the client’s needs and preferences. To ensure the statement will be effective, a bank should consider the following features:

Simple and plain language: when technical terms need to be incorporated, they should be explained if the client is unlikely to understand their meaning; and

Concise and clear messages: lengthy explanations and extensive statements are likely to reduce the effectiveness of the statement and make the client less likely to read the statement properly.

Two government regulations require certain documents to be written for the benefit of consumers:

“Sales and Marketing Guidelines for Derivatives”, from Securities and Exchange Commission document titled “New Rules on the Registration of Long-Term Commercial Papers” (see the box on the right)
Bangko Sentral ng Pilipinas Circular No. 702, Series of 2010 (unfair credit card debt collection practices and their sanctions)

The problem with the SEC regulation is that it is merely recommendatory with no sanctions for non-compliance. The BSP circular does not provide standards on what readability is.

[2] Considering the benefits as discussed by Prof. Kimble and the Office of Consumer Protection (U.S. Department of Commerce), private businesses should also consider using Plain Language in all their print and online communications.

Plain English / Plain Language revisions: “Before and after” comparisons of selected government communications

I will be posting in this blog my Plain Language revisions of selected government communications. By showing “before and after” comparisons, I hope that our lawmakers and owners of private businesses will realize the benefits of implementing a Plain Language program.

Plain English / Plain Language lecture-seminars

I also conduct a three hour lecture-seminar for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com for details.

Interactive quizzes on Plain English / Plain Language

For interactive grammar exercises, please visit my “Better English for everyone” website. Posted below are links to interactive quizzes on Plain English / Plain Language that I have created.

Index for review activities

Plain Language in song

Online resources on Plain English / Plain Language by Google

Garner on Language and Writing, by Bryan A. Garner, editor of Black’s Law Dictionary, 749 pages (copyright by American Bar Association)

Topics include learning to write, style, persuasion, contractual and legislative drafting, grammar, lexicography, writing in law school, writing in law practice, judicial writing, and all the literature relating to these diverse subjects.

Plain Language Medical Dictionary

The Plain Language Medical Dictionary widget is a project of the University of Michigan Taubman Health Sciences Library as part of the Michigan Health Literacy Awareness project.

Legal Procedures 25: Kinds of pleadings and motions

2010-12-20T11:53:00.013+08:00

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

Kinds of pleadings (Rules 6, 7 and 8 of the Rules of Court)

1. Complaint - the written statement of a plaintiff’s cause of action; the names and residences of the plaintiff and defendant must be stated in the complaint.

2. Answer - specific denials of allegations of the complaint, or a statement of new facts preventing recovery by the plaintiff

3. Counterclaim - any claim which a defending party may have against an opposing party (this may either be compulsory or permissive)

4. Crossclaim - a claim by one party against a co-party arising out of a transaction or occurrence that is the subject matter of the original suit, or of a counterclaim

5. Reply - a denial of new matters stated in the answer (if no reply is filed, the new matters are deemed controverted)

6. Third party complaint - a claim filed by the defendant with the permission of the court against a person who is not a party in the lawsuit (called the “third party defendant”) for contribution, indemnity, subrogation, etc.

Kinds of motions (Rules 6, 7 and 8 of the Rules of Court)

1. Motion for bill of particulars - a request by a party for a clearer and more specific statement of allegations made by the opposing party, to enable him to prepare his responsive pleading or to prepare for trial. It must point out defects complained of and the details desired.

2. Motion to dismiss - a move by the defendant to dismiss the suit against him based on grounds like the lack of jurisdiction, no cause of action, etc.

3. Motion for intervention - made by a person who has a legal interest:

(a) in the matter in litigation;
(b) in the success of either party;
(c) an interest against both; or
(d) who will be adversely affected by distribution or disposition of property in the custody of the court or an officer thereof.

4. Motion for judgment on the pleadings - made by the plaintiff for the court to render a decision based solely on the pleadings because the defendant’s answer does not deny the allegations in the complaint, except damages (this is not allowed for legal separation or annulment cases).

5. Motion for summary judgment - made by any party for the court to render a decision based on the pleadings (complaint, answer, etc), affidavits, stipulations, and admissions, in cases like recovery of debts, etc.

Notes:

1. Personal service of the pleading or motion is preferred. If it is either filed or served through registered mail, it must contain an explanation why personal service was not resorted to (Rule 13, Section 11).

2. Service of a motion on an adverse party should generally be done as to ensure its receipt at least three days before the hearing. Motion day generally is Friday; some courts schedule hearings on any day. If you are a new lawyer, always ask the court staff if the court has a specific motion day.

3. Based on the “omnibus motion rule”, a motion shall include all objections then available; if not included, they are deemed waived, except lack of jurisdiction over the subject matter, litis pendentia, res judicata, and prescription.

4. In a motion to reset a hearing (after the pre-trial conference), the proper fee must be paid.

5. Motions for postponements due to illness of a party or counsel must be accompanied by affidavits or sworn certification.

6. Trial lawyers sometimes say “talo sa motions, panalo sa kaso”. The proceedings in a court case can sometimes be like a roller coaster ride. In one hearing, there may be good results (the judge grants the motion, or the presentation of a witness goes well). But in another hearing, the results may be the opposite. This is one reason why lawyers are not allowed by the ethics of the profession to guarantee to the client the successful outcome of a case.

7. Compared to civil cases, there are a lesser number of pleadings in criminal and labor cases. This is why some lawyers prefer handling only criminal or labor cases.

The Katrina Halili vs. Hayden Kho case: What is a demurrer to evidence? Could Hayden be forced to testify in court?

2010-12-15T10:16:00.009+08:00

The RA 9262 “psychological violence” case filed by Katrina against Hayden was dismissed yesterday by Judge Rodolfo Bonifacio of Branch 159 of the Regional Trial Court of Pasig City. Let’s take a look at some of the legal issues involved:

What is a “Demurrer to Evidence”?

[1] The Pasig City RTC granted the “Demurrer to Evidence” filed by Hayden’s lawyer. In brief, a “demurrer to evidence” is a motion to dismiss the case for lack of sufficient evidence to convict the accused. This is governed by Section 23, Rule 119 of the Rules on Criminal Procedure. The said section states:

SEC. 23. Demurrer to evidence.—After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.

Procedure in filing a demurrer to evidence

Please take note that the defense lawyer must ask the express leave (permission) of the court before filing a “Demurrer to Evidence”. The procedure is:

After the prosecution has formally rested its case, the defense lawyer, in open court, requests the express permission of the judge to file a demurrer. Once the judge gives such permission, the defense lawyer will within the period time approved by the judge file the demurrer. Copy of the demurrer must be furnished to the prosecution (the fiscal and/or the private prosecutor) which may submit its comments or opposition to the demurrer.

Or, the defense lawyer can submit to the court a “Motion to file demurrer to evidence with express leave of court”. Attached to such motion is the demurrer to evidence.

What happens if f the demurrer to evidence is denied?

If the judge denies the demurrer, then the trial continues and the defense must present its evidence.

What happens if the demurer to evidence is granted? What is “double jeopardy”?

If the judge grants the demurrer, then the case is dismissed (in other words, the accused is declared not guilty). No motion for reconsideration or appeal to a higher court is allowed since this would violate the Constitutional prohibition against “double jeopardy”. This term simply means that an accused who has been tried and found not guilty of a crime by a court of competent jurisdiction cannot be held for trial again for the same offense. (You might recall the 1999 movie starring Ashley Judd and Tommy Lee Jones about a woman accused of murdering her husband; the movie revolved around the issue of double jeopardy.)

Why does our Constitution provide that an accused cannot be placed in double jeopardy? Well, without such provision, an accused can be brought to trial again and again and again, ad infinitum. The only exception in the history of the Philippines is the Aquino-Galman double murder case; despite the acquittal of the accused, the Supreme Court allowed the retrial because of the connivance between the judge and the defense.

Could Hayden been forced to testify by the prosecution? Could the defense refuse to present him as a witness for himself?

As I stated above, if the court denied the demurrer, the trial would continue and the defense must present its evidence.

[1] Could Hayden been forced, either by the judge or by the prosecution, to take the witness stand? No, because our Constitution provides that a person cannot be compelled to testify against himself.

[2] Could the defense refuse to present Hayden to testify on his behalf? Yes. This is provided under Section 1 of Rule 115. The refusal of the accused to take the witness stand cannot be taken against him. No inference of guilt can be drawn for his refusal to testify.

Note: One news story, reporting on the dismissal of the case, stated in its lead that “Hayden Kho is now a free man.” This is totally inaccurate in view of the Constitutional provision on the presumption of innocence of the accused. Any person accused of a crime is presumed innocent until and unless the State has proven his guilt beyond reasonable doubt.

From “Jennifer ” to “Jeff ” and from female to male (correction of entries in birth certificate due to intersexuality)

2010-12-14T10:23:00.013+08:00

The Supreme Court in the case of Republic vs. Cagandahan, GR No. 166676, September 12, 2008, upheld the decision of the Regional Trial Court in Siniloan, Laguna which allowed changes in the birth certificate of Jennifer Cagandahan as to (1) her first name from “Jennifer ” to “Jeff ” and (2) the entry for gender from female to male.

I have written previously a related post titled “Can a man who had a sex change operation have his birth certificate entry for gender changed from male to female?”. In that post, I discussed the 2007 Supreme Court decision in the “Rommel Jacinto Dantes Silverio vs. Republic of the Philippines” case. In the Silverio case, the Court did not allow the changes sought by Silverio in his birth certificate.

The difference between the Silverio and Cagandahan cases

Silverio had a sex change or reassignment operation in Bangkok, Thailand. On the other hand, Cagandahan has Congenital Adrenal Hyperplasia (CAH) which is a condition where a person possesses both male and female characteristics. As the Supreme Court stated:

[Cagandahan] simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent's development to reveal more fully his male characteristics.

Silverio deliberately took the sex reassignment operations to change his body to that of a woman. Cagandahan, on the other hand, from birth had a female body, male hormones, two sex organs, and no monthly period.

The facts of the Cagandahan case

[1] In her petition with the Regional Trial Court in Siniloan, Laguna, Jennifer alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics.

[2] She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development.

[3] She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she asked the Regional Trial Court in Siniloan, Laguna that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff.

[4] The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

Jennifer's condition: female body, male hormones, two sex organs, and no monthly period

[5] To prove her claim, Jennifer testified and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that respondent’s condition is known as CAH. He explained that genetically respondent is female but because her body secretes male hormones, her female organs did not develop normally and she has two sex organs - female and male. He testified that this condition is very rare, that Jennifer’s uterus is not fully developed because of lack of female hormones, and that she has no monthly period. He further testified that Jennifer’s condition is permanent and recommended the change of gender because she has made up her mind, adjusted to her chosen role as male, and the gender change would be advantageous to her.

[6] The Regional Trial Court in Siniloan, Laguna granted the petition. The Office of the Solicitor General however brought the case up to the Supreme Court.

The Supreme Court’s ruling

[1] Respondent (Jennifer) undisputedly has CAH. This condition causes the early or “inappropriate” appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

What is Congenital Adrenal Hyperplasia (CAH)?

[2] CAH is one of many conditions that involve intersex anatomy. During the twentieth century, medicine adopted the term “intersexuality” to apply to human beings who cannot be classified as either male or female. The term is now of widespread use. According to Wikipedia, intersexuality “is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes.”

How societies treat intersexuality

[3] Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role. Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals. More commonly, an intersex individual is considered as suffering from a “disorder” which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female.

[4] In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. “It has been suggested that there is some middle ground between the sexes, a ‘no-man’s land’ for those individuals who are neither truly ‘male’ nor truly ‘female’.” The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification.

[5] In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the subject's birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondent’s body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male.

Determining factor in gender classification for intersex individuals

[6] Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent’s development to reveal more fully his male characteristics.

[7] In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an “incompetent” and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent's position and his personal judgment of being a male.

[8] In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.

[9] As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent's change of name merely recognizes his preferred gender, we find merit in respondent's change of name. Such a change will conform with the change of the entry in his birth certificate from female to male.

(Note: The narration of facts and the ruling are from the Supreme Court decision, but were broken up into numbered paragraphs for easier comprehension by laymen.)

The ABS-CBN versus Willie Revillame case: What is a TRO?

2010-12-02T09:46:00.042+08:00

(Note: Please read my Salt and Light blog post “Relationship tips for Shalani and other single men and women”.)

Due to the wide media coverage of this case and the popularity of the “Willing Willie” show, people have been hearing the term “TRO” over and over again. What exactly is a TRO?

Let’s deal first with the background facts. ABS-CBN filed last week of November with the Makati Regional Trial Court a 127 million peso case of infringement of copyright against Willie Revillame and TV5. According to a Starmometer report, “ABS-CBN claimed that Revillame and his co-defendants unlawfully infringed on ABS-CBN’s copyright over its show, Wowowee, citing section 172.2(l) of the Intellectual Property Code (IP Code). ABS-CBN stated that as the producer of Wowowee, it is the legal owner of a valid and subsisting copyright over each and every one of the Wowowee episodes and is thus entitled to protection against those who steal its work.”

The Starmometer report also stated: “Aside from seeking an award of damages in the amount of more than P127 Million, ABS-CBN also seeks for the issuance of a Temporary Restraining Order (TRO) and/or a Writ of Injunction to restrain Revillame, ABC and their other co-defendants from further producing and airing the infringing show Willing-Willie.”

Let me try to explain briefly these things in the vernacular:

Idinemanda ng ABS-CBN si Willie Revillame at TV5 sa Makati Regional Trial Court ng paglabag sa copyright law ng Filipinas. Humihingi ang ABS-CBN ng damyos na 127 million pesos. Upang mapigilan ang patuloy na paglabag sa karapatan nito, hinihiling ng ABS-CBN sa husgado na maglabas ng Temporary Restraining Order (TRO) o kaya ay writ of preliminary injunction laban kay Willie at TV5. Kung maglabas ng TRO o writ of preliminary injunction ang husgado, hindi na pwedeng ipalabas ng TV5 ang Willing Willie.

What is a preliminary injunction?

Rule 58 of the Rules of Court covers the provisional remedy of preliminary injunction. The term “provisional” means “while the case is going on”. Once the court hands down its decision in the case, the writ of “preliminary injunction“” may either become permanent or be done away with (if such writ or order was issued in the first place, that is).

Rule 58 Preliminary Injunction - an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by the said court or any member thereof.

A preliminary injunction may be granted when it is established:

(a) that the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) that the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(c) that a party, court, agency or person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

What is a Temporary Restraining Order (TRO)?

When a party files a case and it asks for a preliminary injunction, it usually also asks the court to issue a “Temporary Restraining Order” because time is of the essence. If the party only asks for a writ of preliminary injunction, the hearing will usually be scheduled weeks or months from the filing of the case. The hearing can be scheduled, for example, as part of the pre-trial conference. But if the party also asks for the issuance of a TRO, the court must schedule a hearing within 24 hours from the filing of the case. Here are the rules:

[1] The executive judge of a multiple sala court may issue a TRO ex-parte but it is good for seventy two (72) hours only. The term “ex-parte” means that the executive judge can grant the TRO immediately without any hearing.

[2] Within twenty four (24) hours after receiving the records of the case and/or from the sheriff’s return, the trial judge must, after a summary hearing, either grant or deny the application for a TRO.

[3] If granted, the TRO it is effective only for twenty (20) days and is automatically lifted after such period. During the effectivity of the TRO, the hearing for the issuance of a writ of preliminary injunction may be held.

[4] If the TRO is not granted, the court will schedule hearings to determine whether a writ of preliminary injunction should be issued or not.

[5] A TRO issued by the Court of Appeals or any of its members is good for sixty (60) days from service on the party sought to be restrained. On the other hand, a TRO granted by the Supreme Court or any of its member is effective until lifted by order.

In layman’s terms, a party wants a TRO or a writ of preliminary injunction so as to preserve his rights or to prevent damage. Without a TRO or a writ of preliminary injunction, the party, even if he eventually wins the case, may be left holding an empty bag, so to speak. (This may be illustrated by a dismissed employee winning a case with the NLRC against his employer. But if the company has become bankrupt while the case is going on, the employee may not be able to collect what the NLRC has awarded to him.)

Makati RTC refuses to grant the TRO; what happens next?

As you may know by now, the Makati RTC judge handling this case denied the ABS-CBN motion for the issuance of the TRO. What will happen next? The court will conduct hearings on:

(1) whether to grant a writ of preliminary injunction, and

(2) the main case of the alleged infringement of copyright.

Please take note that if a court does not grant a TRO, this does not necessarily mean it will not also grant a writ of preliminary injunction. Simply stated, a party may not get from the court a TRO but it may possibly get a writ of preliminary injunction. So, if the Makati RTC enjoins (stops) TV5 from airing Willing Willie, it will be through a writ of preliminary injunction and not by a TRO.

Motion to inhibit against Makati judge

The lawyers of TV5 and Willing Willie have also filed a “Motion To Inhibit” (also called “Motion To Recuse”) against the Makati RTC judge for his alleged ties to the lawyers of ABS-CBN. This motion has to be resolved first by the judge (or resolved together with the matter of the issuance of a writ of preliminary injunction.) If the judge refuses to inhibit himself, the lawyers of TV5 and Willing Willie will most likely bring this matter up to the Court of Appeals. They will ask the CA to order the judge to inhibit himself and to stay or suspend the hearings of the Makati RTC. (One other action that is often taken by lawyers is to file an administrative case against the judge with the Office of the Court Administrator of the Supreme Court.)

TV5 and Willing Willie’s defense: the format or mechanics of a television show cannot be copyrighted

According to news reports, lawyers for TV5, citing the 1999 decision of the Supreme Court in the case of Joaquin Jr. vs. Secretary of Justice Franklin Drilon, wanted the Makati court to dismiss the case filed by ABS-CBN. That 1999 decision involved a 1970's show “Rhoda and Me” which was allegedly copied by an RPN 9 program called “It’s a Date”. Secretary of Justice (now Senator) Drilon refused to file criminal charges for infringement of copyright against the RPN 9 program producer; the Supreme Court upheld Drilon’s action. TV5 is relying on the Supreme Court’s ruling that:

“The format or mechanics of a television show is not included in the list of protected works in Section 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to cover them.”

ABS-CBN’s plan of action: facts of the Joaquin vs. Drilon case not on “all fours” with the present case

Lawyers of ABS-CBN were surely aware of the Supreme Court ruling in the Joaquin Jr. vs. Drilon case. So why did they still file this case? Well, in my opinion, ABS-CBN will argue that the ruling applies only to the format or mechanics of a show and not to specific portions or segments. Meaning, ABS-CBN will argue that specific portions or segments of Wowowee like the opening song and dance routine, for example, can be copyrighted. As the legal expression goes, ABS-CBN will argue that the facts of the Joaquin vs. Drilon case are not on “all fours” with its case against Willing Willie.

The Supreme Court’s ruling in the Drilon case also faulted the producer of the “Rhoda and Me” show for its failure to present the master tapes. ABS-CBN will most probably present tapes of the “Wowowee” and “Willing Willie” for the judge to view side by side.

This conflict of opinions on the interpretation of laws and Supreme Court decisions is what makes litigation or trial practice the cutting edge of the law. Besides, there are a lot of gray areas in copyright law. Please read these articles: (1) Salient provisions of the Intellectual Property Code of the Philippines; (2) Copyright laws: too restrictive or a fair reward for creators? and Playing it safe – Internet content and copyright by Virginia Morrison; and (3) What is copyright?

Forum shopping

In simple terms, “forum shopping” takes place when a party files multiple cases in several courts, hoping that it will be able to get a favorable ruling in one court. Forum shopping is a ground for the dismissal of a case. This is why a certification on non-forum shopping is a mandatory part of any initiatory pleading (complaint or petition).

Some people are questioning why ABS-CBN filed this infringement of copyright case against Willie Revillame in Makati when there is already a case between them being heard in Quezon City. These people say that ABS-CBN is guilty of “forum shopping”. This is not true, in fairness to ABS-CBN.

In the Quezon City case, Revillame filed a petition for judicial confirmation of the rescission of his contract with ABS-CBN. He also asked for 11 million pesos in damages. ABS-CBN as counterclaim filed a 426 million peso counterclaim against Revillame for breach of his contract by signing up for a new show (“Willing Willie”) on TV5. ABS-CBN also asked the Quezon City court to issue a TRO to stop the airing of “Willing Willie”). When the court denied the motion for the TRO, ABS-CBN filed a petition for certiorari with an application for a TRO with the Court of Appeals. The CA denied the motion for a TRO.

Take note that the causes of actions in the cases filed by ABS-CBN are different; its counterclaim in Quezon city involves an alleged breach of contract while the Makati case involves an alleged infringement of copyright. Moreover, as far as I know, TV 5 did not raise the issue of “forum shopping” with the Makati court.

The question really is not of forum shopping but of venue. All the parties involved (ABS-CBN, TV5 and Willie Revillame) are based in Quezon City but ABS-CBN, for one reason or another, chose to file the copyright infringement case in Makati. “Improper venue” is a ground for dismissal of a case (without prejudice to its refiling in the proper venue). But as far as I know, the lawyers of TV5 and Revillame did not raise this issue.

An interesting Supreme Court ruling on the issue of “improper venue” is “Irene Marcos-Araneta, Daniel Rubio, Orlando G. Reslin, And Jose G. Reslin, Petitioners, vs. Court Of Appeals, Julita C. Benedicto, And Francisca Benedicto-Paulino, Respondents”. In this case, the Court ruled that the case must be filed in the proper court of the residence of the principal complainant, as Sec. 2 of Rule 4 provides. The Court ruled:

Irene was a resident during the period material of Forbes Park, Makati City. She was not a resident of Brgy. Lacub, Batac, Ilocos Norte, although jurisprudence[44] has it that one can have several residences, if such were the established fact. The Court will not speculate on the reason why petitioner Irene, for all the inconvenience and expenses she and her adversaries would have to endure by a Batac trial, preferred that her case be heard and decided by the RTC in Batac. On the heels of the dismissal of the original complaints on the ground of improper venue, three new personalities were added to the complaint doubtless to insure, but in vain as it turned out, that the case stays with the RTC in Batac.

Litigants ought to bank on the righteousness of their causes, the superiority of their cases, and the persuasiveness of arguments to secure a favorable verdict. It is high time that courts, judges, and those who come to court for redress keep this ideal in mind.

Legal Procedures 24: Motion to Dismiss

2010-11-11T14:53:00.011+08:00

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[1] A motion to dismiss is a prohibited pleading with cases falling under the Rule on Summary Procedure. In some instances, judges require the defendant to file an Answer instead of a motion to dismiss even if the case does not fall under Summary Procedure. In either case, the Answer can contain the grounds for a motion to dismiss as affirmative defenses.

[2] If the court grants the motion to dismiss, the complaint is dismissed. Subject to appeal, an order granting the motion to dismiss based on paragraphs g, h and i of Section 1, Rule 16 prevents the refiling of the same action or claim.

[3] If the court denies the motion to dismiss, the defendant can proceed to file an answer within the balance of the fifteen (15) day period to which he was entitled at the time of the serving of his motion but not less than five (5) days in any event, computed from his receipt of the notice of denial.

The defendant may also file a petition for certiorari or prohibition on the grounds of grave abuse of discretion, or the court’s lack or excess of jurisdiction.

Rule 16 Motion To Dismiss

SECTION 1. Grounds.—Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with. (1a)

SEC. 2. Hearing of motion.—At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n)

SEC. 3. Resolution of motion.—After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a)

SEC. 4. Time to plead.—If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a)

SEC. 5. Effect of dismissal.—Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n)

SEC. 6. Pleading grounds as affirmative defenses.—If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a)

The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n)

Rule 17 Dismissal Of Actions

SECTION 1. Dismissal upon notice by plaintiff.—A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

SEC. 2. Dismissal upon motion of plaintiff.—Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a)

SEC. 3. Dismissal due to fault of plaintiff.—If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)

SEC. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.—The provisions of this Rule shall apply. to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4n)

Quickie marriages under Article 34 of the Family Code: Is the marriage void if the affidavit of marital cohabitation is false?

2010-10-12T12:00:00.007+08:00

Quickie marriages solemnized in some city halls by so-called “ministers” either make use of (a) pre-dated marriage licenses obtained from friendly contacts inside the office of the Local Civil Registrar; or (b) affidavit of marital cohabitation under Article 34 of the Family Code. The said article states:

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.

Our senators and congressmen should really consider repealing Article 34 for several reasons:

[1] The commission which drafted the Family Code in the late 1980s wanted to delete this provision because it had been abused so much. Even today, mass weddings conducted by mayors use Article 34.

[2] Embassies like that of the US, Canada, Australia, etc. are reportedly requiring applicants for immigration to provide proof that Article 34 has been complied with. These embassies are asking for proof that indeed the parties that they had indeed cohabited as husband and wife for five consecutive years before the marriage. If such proofs cannot be submitted, the application for immigration is reportedly denied.

A man or woman below 23 years of age cannot avail of Article 34

I was told that some Local Civil Registrars have been advised by the legal counsels of towns or cities that a man or woman aged 18 can make use of Article 34. This is contrary to the Supreme Court decision in the 2000 case of Niñal vs. Bayadog, as cited in the 2008 Dayot case. Based on this decision, it should be clear that only men and women who are at least 23 years old can avail of Article 34. The Court said:

The five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity - meaning no third party was involved at any time within the 5 years and continuity - that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.

Persons below 23 years of age cannot avail of Article 34 of the Family Code. This is because if they are below 23, it means that the cohabitation began when they were below 18. Under Article 35 of the Family Code, no one can get married below the age of 18. As the Supreme Court observed in the Niñal vs. Bayadog case, “The exclusive five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage.”

If the affidavit of marital cohabitation is false, the marriage is void

The Supreme Court ruled in the Dayot case that the falsity of an affidavit of marital cohabitation effectively renders the marriage void ab initio for lack of a marriage license. Two things need to be pointed out:

[a] The parties cannot take the law into their own hands and declare by themselves that the marriage is void. Under Article 40 of the Family Code they should file a petition to have the marriage declared as void because of the falsity of the affidavit of marital cohabitation.

[b] The parties who committed the falsification will be criminally liable. Judge Alicia V. Sempio-Diy, a member of the Commission which crafted the Family Code, in her book A Handbook on the Family Code of the Philippines (1995 Ed., p. 38) wrote that “If the parties falsify their affidavit in order to have an instant marriage, although the truth is that they have not been cohabiting for five years, their marriage will be void for lack of a marriage license, and they will also be criminally liable.”

If	then
the minor is not a Filipino citizen and holds a foreign passport …	a travel clearance is not required.
the minor is a Filipino citizen and living abroad but does not hold a permanent resident visa/pass/identification card …	a travel clearance is required.

if the child will be traveling with you …	travel clearance is not required
if the child will be traveling alone or with someone other than you …	travel clearance is required.