It is something of a legal issue that has confounded practitioners before the Family Court like an agonizing question: “May the paternal grandparents be required to give support to their grandchildren in the event of the father’s inability to extend such sustenance to his children?”
The law on support is governed by the Family Code of the Philippines#, which provides that parents and their legitimate children are obliged to mutually support one another, and it is worthy to note that this obligation extends down to the legitimate grandchildren and great grandchildren. The law also asserts that should the person obliged to give assistance, like the mother and the father, does not have sufficient means to satisfy all claims, the other persons enumerated in Article 199 in its order, like the grandparents, shall provide the necessary relief.
The rationale behind this obligation to give helping hand by the other persons aside from the parents is not difficult to see as it is based on ordinary human experience on relationship. As the adage of “blood is thicker than water” goes, the closer the relationship of the relatives, the stronger the tie that binds them, and this is because the obligation to give aid is imposed first upon the shoulder of the closer relatives and only in their default is the obligation moved to the next nearer relatives.#
It is by statutory and jurisprudential mandate that the liability of the ascendants, like grandparents to provide legal support to their descendants like grandchildren is beyond dispute. Although the obligation to give legal support principally pertains to the parents, but this obligations likewise passes to the grandparents not only upon default of the parents but also for the parents’ inability to provide sufficient nourishment, so to speak. As a fortiori, the grandchildren cannot demand support directly from their grandparents if they have parents who are capable and willing of supporting them.#
Lest it be misunderstood, the grandparents’ concurrent obligation to give support extends only to their descendants, as the term is commonly understood to refer to relatives by blood of lower degree, like the grandchildren. Simply stated, if no support is forthcoming from the parents, the grandchildren can ask support from their grandparents. However, unlike the grandchildren, the daughter-in-law or the mother of the grandchildren has no legal right to claim for support from her parents-in-law, since her right to receive such support stems exclusively from her husband, anchoring from their marital bond.
By Judge Globert J. Justalero
Monday, March 21, 2011
A Road to Incivility
“Civility is to the courtroom and adversary process what antiseptic is to a hospital and operating room. The best medical brains cannot outwit soiled linen or dirty scalpels – and the best legal skills cannot either justify or offset bad manners.” – Justice Warren E. Burger
When Republic v. Court of Appeals and Roridel Olaviano Molina# came out on February 13, 1997, Solicitors were given marching orders to appear as defensor vinculi (defender of the bond) to represent the Republic. By all accounts, it was taxing because we had already a hard time squeezing our time writing our comment or People’s brief and our out of town hearings.
One time, armed with a written opposition, I appeared before a regional trial court in Quezon City. Just like any other cases, I usually go directly to the branch clerk of court to leave my tailor-made certificate of appearance for signature before the start of a hearing. As I was having a small talk with the branch clerk of court about the impact of the Molina Doctrine, the court interpreter barged in and introduced herself to me. I have a gut-feeling that she is up into something for cutting in.
As you might expect, once I settled in the court room and as litigants were coming in trickles, the mannish court interpreter approached me again and asked me if I am raring to go with my opposition. “Of course”, what am I here for?” was my tart reply. She then told me that somebody just wants to talk to me.
Soon enough, that “somebody” came in a flash. The court interpreter lost no time and introduced him to me. He was in his late 40’s but he looks so 70’s - he was wearing a vintage double knit plaid suit and was sporting sideburns below his shaggy hair. He extended his hand to shake as I was stiffly seated at the front row. I maintained my stiff and stoic bearing to ward off any sinister move all the time. And this simple trick always work but maybe not this time because this lawyer was so pushy that he bluntly told me not to pursue my opposition and he will give me half of his appearance fees. A half-price lawyer…Huh? This is not Vegas, for crying out loud! I laughed down his silly proposal; and turn my back on him. He was mumbling something inaudible as he was leaving the court room which I did not mind at all. And I hoped that whoever might be listening simply was not interested.
When the case was called out, I pursued my opposition with no let-up; and argued for it as I gave the lawyer a black look.
As the gavel bangs for the next case, the lawyer tapped my back again and whispered, “KJ ka talaga, Solicitor”, and left the court room. Darn it! “Think him as a serpent’s egg, which hatch’d, would, as his kind, grow mischievous”.#
When I got back to the office, I shared my experience to my Assistant Solicitor General in between our lunch at the 10th Floor. He was laughing. It was nostalgic, he frankly said to me. Kidding aside, he gave me a piece of advice – “watch out, more storms are coming”. “Yes, no sweat Judge”, I assuredly replied, and chowed down.
Bench Notes: One day John Marshall and his fellow Supreme Court justices, having heard disturbing rumors of their own excessive drinking, jointly agreed to abstain on their weekly consultation day - unless it was raining. The following consultation day, Marshall (the Chief Justice) instructed Joseph Story to go to the window and check for signs of inclement weather.
Story soon reported back: "Mr. Chief Justice, I have very carefully examined this case," he declared, "and I have to give it as my opinion that there is not the slightest sign of rain."
"Justice Story," Marshall replied, "I think that is the shallowest and most illogical opinion I have ever heard you deliver. You forget that our jurisdiction is as broad as the Republic, and by the laws of nature it must be raining some place in our jurisdiction. Waiter, bring on the rum!"
(Source: www.Anecdotage.com)
By Judge Enrique Z. Trespeces
When Republic v. Court of Appeals and Roridel Olaviano Molina# came out on February 13, 1997, Solicitors were given marching orders to appear as defensor vinculi (defender of the bond) to represent the Republic. By all accounts, it was taxing because we had already a hard time squeezing our time writing our comment or People’s brief and our out of town hearings.
One time, armed with a written opposition, I appeared before a regional trial court in Quezon City. Just like any other cases, I usually go directly to the branch clerk of court to leave my tailor-made certificate of appearance for signature before the start of a hearing. As I was having a small talk with the branch clerk of court about the impact of the Molina Doctrine, the court interpreter barged in and introduced herself to me. I have a gut-feeling that she is up into something for cutting in.
As you might expect, once I settled in the court room and as litigants were coming in trickles, the mannish court interpreter approached me again and asked me if I am raring to go with my opposition. “Of course”, what am I here for?” was my tart reply. She then told me that somebody just wants to talk to me.
Soon enough, that “somebody” came in a flash. The court interpreter lost no time and introduced him to me. He was in his late 40’s but he looks so 70’s - he was wearing a vintage double knit plaid suit and was sporting sideburns below his shaggy hair. He extended his hand to shake as I was stiffly seated at the front row. I maintained my stiff and stoic bearing to ward off any sinister move all the time. And this simple trick always work but maybe not this time because this lawyer was so pushy that he bluntly told me not to pursue my opposition and he will give me half of his appearance fees. A half-price lawyer…Huh? This is not Vegas, for crying out loud! I laughed down his silly proposal; and turn my back on him. He was mumbling something inaudible as he was leaving the court room which I did not mind at all. And I hoped that whoever might be listening simply was not interested.
When the case was called out, I pursued my opposition with no let-up; and argued for it as I gave the lawyer a black look.
As the gavel bangs for the next case, the lawyer tapped my back again and whispered, “KJ ka talaga, Solicitor”, and left the court room. Darn it! “Think him as a serpent’s egg, which hatch’d, would, as his kind, grow mischievous”.#
When I got back to the office, I shared my experience to my Assistant Solicitor General in between our lunch at the 10th Floor. He was laughing. It was nostalgic, he frankly said to me. Kidding aside, he gave me a piece of advice – “watch out, more storms are coming”. “Yes, no sweat Judge”, I assuredly replied, and chowed down.
Bench Notes: One day John Marshall and his fellow Supreme Court justices, having heard disturbing rumors of their own excessive drinking, jointly agreed to abstain on their weekly consultation day - unless it was raining. The following consultation day, Marshall (the Chief Justice) instructed Joseph Story to go to the window and check for signs of inclement weather.
Story soon reported back: "Mr. Chief Justice, I have very carefully examined this case," he declared, "and I have to give it as my opinion that there is not the slightest sign of rain."
"Justice Story," Marshall replied, "I think that is the shallowest and most illogical opinion I have ever heard you deliver. You forget that our jurisdiction is as broad as the Republic, and by the laws of nature it must be raining some place in our jurisdiction. Waiter, bring on the rum!"
(Source: www.Anecdotage.com)
By Judge Enrique Z. Trespeces
Sexual Discrimination Against Women in the Workplace
With women empowerment does not necessarily comes protection against sexual discrimination in the playing field of employment. Sexual discrimination against women in the workplace has been making news headlines for years, but the history’'s largest civil rights lawsuit has just been certified that has the potential to change the job environment for all women. While discrimination can target both men and women, the majority of cases involve sexual discrimination against women. It has been a challenge over the years to lessen the pay gap between men and women, to equalize promotions and employment opportunities, and to put a fair playing field in the workplace regardless of gender. Sexual discrimination against women has been fought through the courts and history-altering decisions removing sex-based restrictions on occupations were achieved. Many people continuing to fight against sexual discrimination against women hope that Supreme Court Decisions will bring even more necessary changes to the workplace and force the public as a whole to scrutinize the way our employment system is set up.
LEGISLATION OF THE MAGNA CARTA FOR WOMEN
Congress has recently enacted Republic Act No. 9710 known as “The Magna Carta of Women” (MCW). The new law affirms that women are holders of and claimants to human rights. It clearly places on government shoulders the duty to ensure that the human rights of women are upheld and promoted. The three branches of government at all levels and government-owned and -controlled corporations assume these obligations under the MCW. Womens rights advocates keep abreast and take advantage of positive advances in legal-standard setting in the international arena to support their advocacy and other strategies.
Under the UN Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), governments that have ratified the treaty like the Philippines have the obligation to eliminate discrimination against women and to take steps so that women, regardless of their status, condition or situation, have the opportunity to exercise and enjoy their rights. Consistent with the Cedaw, the MCW requires that government consider the specific risks and particular contexts, especially of women in marginalized sectors or those in situations of conflict, when it adopts women-specific or general programs and measures. The MCW in many respects is a model for adopting the Cedaw norms on equality and non-discrimination in a country’s legislation.
LATEST SUPREME COURT DECISION ON THE RECENT ISSUE
Recent jurisprudence upholding the rights of women against sexual discrimination in the workplace have been promulgated by the Supreme Court. A recent Decision is in the case of PATRICIA HALAGUEÑA and other flight attendants of PHILIPPINE AIRLINES vs.
PHILIPPINE AIRLINES INCORPORATED (G.R. No. 172013, October 2, 2009).
Petitioners were employed as female flight attendants of respondent Philippine Airlines (PAL) on different dates prior to November 22, 1996. They are members of the Flight Attendants and Stewards Association of the Philippines (FASAP), a labor organization certified as the sole and exclusive certified as the sole and exclusive bargaining representative of the flight attendants, flight stewards and pursers of respondent. On July 11, 2001, respondent and FASAP entered into a Collective Bargaining Agreement incorporating the terms and conditions of their agreement for the years 2000 to 2005, hereinafter referred to as PAL-FASAP CBA. Section 144, Part A of the PAL-FASAP CBA, provides that for the Cabin Attendants hired before 22 November 1996, compulsory retirement shall be fifty-five (55) for females and sixty (60) for males.
Petitioners and several female cabin crews manifested that the aforementioned CBA provision on compulsory retirement is discriminatory, and demanded for an equal treatment with their male counterparts. The thrust of the Petition is that Sec. 144 of the subject CBA is allegedly discriminatory as it discriminates against female flight attendants, in violation of the Constitution, the Labor Code, and the CEDAW. The case seeks a declaration of the nullity of the questioned provision of the CBA.
However, the Supreme Court declared that the question as to whether said Section 114, Part A of the PAL-FASAP CBA is discriminatory or not is a question of fact. This would require the presentation and reception of evidence by the parties in order for the trial court to ascertain the facts of the case and whether said provision violates the Constitution, statutes and treaties. Since a full-blown trial is necessary, the case was remanded to the RTC for the proper determination of the merits of the petition for declaratory relief is just and proper.
In the meantime, the issue of discrimination was left hanging. The Supreme Court is yet to make a ruling on this matter, should the decision of the RTC be raised up to the Highest Tribunal of the Land to form part of jurisprudence.
AN OLD YET LANDMARK JURISPRUDENCE ON THE ISSUE
A landmark case on discrimination against women in the work field is that of PT & T vs. NLRC, G.R. No. 118978 May 23, 1997. Seeking relief through the extraordinary writ of certiorari, Philippine Telegraph and Telephone Company (hereafter, PT & T) invokes the alleged concealment of civil status and defalcation of company funds as grounds to terminate the services of an employee. That employee, Grace de Guzman, contrarily argues that what really motivated PT & T to terminate her services was her having contracted marriage during her employment, which is prohibited by petitioner in its company policies. She thus claims that she was discriminated against in gross violation of law, such a proscription by an employer being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a "Supernumerary Project Worker," for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on maternity leave. Under the Reliever Agreement which she signed with petitioner company, her employment was to be immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July 1, 1991, and from July 19, 1991 to August 8, 1991, private respondent's services as reliever were again engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went on leave during both periods. After August 8, 1991, and pursuant to their Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary employee, the probationary period to cover 150 days. In the job application form that was furnished her to be filled up for the purpose, she indicated in the portion for civil status therein that she was single although she had contracted marriage a few months earlier, that is, on May 26, 1991.
It now appears that private respondent had made the same representation in the two successive reliever agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about the company's policy of not accepting married women for employment.
In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&T's policy regarding married women at the time, and that all along she had not deliberately hidden her true civil status. Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed from the company effective January 29, 1992, 6 which she readily contested by initiating a complaint for illegal dismissal, coupled with a claim for non-payment of cost of living allowances (COLA), before the Regional Arbitration Branch of the National Labor Relations Commission in Baguio City.
The Supreme Court had occasion to discuss this issue extensively with the following pronouncements:
“Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but, through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of labor, especially on the matter of equal employment opportunities and standards. In the Philippine setting, women have traditionally been considered as falling within the vulnerable groups or types of workers who must be safeguarded with preventive and remedial social legislation against discriminatory and exploitative practices in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article II on the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary thereto, Section 3 of Article XIII (the progenitor whereof dates back to both the 1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to promote full employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of Article XIII 10 mandates that the State shall protect working women through provisions for opportunities that would enable them to reach their full potential.
Corrective labor and social laws on gender inequality have emerged with more frequency in the years since the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our country's commitment as a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Principal among these laws are Republic Act No. 6727 which explicitly prohibits discrimination against women with respect to terms and conditions of employment, promotion, and training opportunities; Republic Act No. 6955 which bans the "mail-order-bride" practice for a fee and the export of female labor to countries that cannot guarantee protection to the rights of women workers; Republic Act No. 7192 also known as the "Women in Development and Nation Building Act," which affords women equal opportunities with men to act and to enter into contracts, and for appointment, admission, training, graduation, and commissioning in all military or similar schools of the Armed Forces of the Philippines and the Philippine National Police; Republic Act No. 7322 increasing the maternity benefits granted to women in the private sector; Republic Act No. 7877 which outlaws and punishes sexual harassment in the workplace and in the education and training environment; and Republic Act No. 8042, or the "Migrant Workers and Overseas Filipinos Act of 1995," which prescribes as a matter of policy, inter alia, the deployment of migrant workers, with emphasis on women, only in countries where their rights are secure. Likewise, it would not be amiss to point out that in the Family Code, women's rights in the field of civil law have been greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138 thereof. Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of women to be provided with facilities and standards which the Secretary of Labor may establish to ensure their health and safety. For purposes of labor and social legislation, a woman working in a nightclub, cocktail lounge, massage clinic, bar or other similar establishments shall be considered as an employee under Article 138. Article 135, on the other hand, recognizes a woman's right against discrimination with respect to terms and conditions of employment on account simply of sex. Finally, and this brings us to the issue at hand, Article 136 explicitly prohibits discrimination merely by reason of the marriage of a female employee.
x x x x x x x x x
In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company were dissolved principally because of the company's policy that married women are not qualified for employment in PT & T, and not merely because of her supposed acts of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware that the company is not accepting married women employee (sic), as it was verbally instructed to you." 21 Again, in the termination notice sent to her by the same branch supervisor, private respondent was made to understand that her severance from the service was not only by reason of her concealment of her married status but, over and on top of that, was her violation of the company's policy against marriage ("and even told you that married women employees are not applicable [sic] or accepted in our company.") Parenthetically, this seems to be the curious reason why it was made to appear in the initiatory pleadings that petitioner was represented in this case only by its said supervisor and not by its highest ranking officers who would otherwise be solidarily liable with the corporation.
Verily, private respondent's act of concealing the true nature of her status from PT & T could not be properly characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to retain a permanent job in a stable company. In other words, she was practically forced by that very same illegal company policy into misrepresenting her civil status for fear of being disqualified from work. While loss of confidence is a just cause for termination of employment, it should not be simulated. 24 It must rest on an actual breach of duty committed by the employee and not on the employer's caprices. Furthermore, it should never be used as a subterfuge for causes which are improper, illegal, or unjustified.
x x x x x x x x x
Petitioner would have the Court believe that although private respondent defied its policy against its female employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits as unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial matter to which it supposedly has no objection. In other words, PT & T says it gives its blessings to its female employees contracting marriage, despite the maternity leaves and other benefits it would consequently respond for and which obviously it would have wanted to avoid. If that employee confesses such fact of marriage, there will be no sanction; but if such employee conceals the same instead of proceeding to the confessional, she will be dismissed. This line of reasoning does not impress us as reflecting its true management policy or that we are being regaled with responsible advocacy.
x x x x x x x x x
Finally, petitioner's collateral insistence on the admission of private respondent that she supposedly misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat insincere and self-serving. Concededly, private respondent admitted in the course of the proceedings that she failed to remit some of her collections, but that is an altogether different story. The fact is that she was dismissed solely because of her concealment of her marital status, and not on the basis of that supposed defalcation of company funds. That the labor arbiter would thus consider petitioner's submissions on this supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a perceptive conclusion born of experience in labor cases. For, there was no showing that private respondent deliberately misappropriated the amount or whether her failure to remit the same was through negligence and, if so, whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent execute a promissory note to refund the same, which she did, and the matter was deemed settled as a peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was served her walking papers on January 29, 1992, she was about to complete the probationary period of 150 days as she was contracted as a probationary employee on September 2, 1991. That her dismissal would be effected just when her probationary period was winding down clearly raises the plausible conclusion that it was done in order to prevent her from earning security of tenure. 27 On the other hand, her earlier stints with the company as reliever were undoubtedly those of a regular employee, even if the same were for fixed periods, as she performed activities which were essential or necessary in the usual trade and business of PT & T. The primary standard of determining regular employment is the reasonable connection between the activity performed by the employee in relation to the business or trade of the employer.
As an employee who had therefore gained regular status, and as she had been dismissed without just cause, she is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of allowances and other benefits or their monetary equivalent. However, as she had undeniably committed an act of dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition of petitioner, the three-month suspension imposed by respondent NLRC must be upheld to obviate the impression or inference that such act should be condoned. It would be unfair to the employer if she were to return to its fold without any sanction whatsoever for her act which was not totally justified. Thus, her entitlement to back wages, which shall be computed from the time her compensation was withheld up to the time of her actual reinstatement, shall be reduced by deducting therefrom the amount corresponding to her three months suspension.
The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner PT & T. The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage. — It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage.
x x x x x x x x x
Further, it is not relevant that the rule is not directed against all women but just against married women. And, where the employer discriminates against married women, but not against married men, the variable is sex and the discrimination is unlawful. Upon the other hand, a requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the particular requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in one case, a no-marriage rule applicable to both male and female flight attendants, was regarded as unlawful since the restriction was not related to the job performance of the flight attendants.
Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable right. Hence, while it is true that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient, the same should not be contrary to law, morals, good customs, public order, or public policy. Carried to its logical consequences, it may even be said that petitioner's policy against legitimate marital bonds would encourage illicit or common-law relations and subvert the sacrament of marriage.
x x x the danger of just such a policy against marriage followed by petitioner PT & T is that it strikes at the very essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation. That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but imperatively required.”
CONCLUSION
Women may have greater access to legal remedy because of the prohibition and definition of discrimination that the laws like MCW provide. Human rights defenders may find additional legal bases in the law to demand accountability and end impunity for violations or denial of rights that many women continue to experience. Achieving the goals of the MCW is a monumental tasks amidst a male-oriented culture in the Philippines. The Courts and legal practitiones should remain vigilant that the magna carta and treaties for protection of women against sexual discrimination in the workplace is implemented in accordance with the visions and spirit of the laws.
By Atty. Janette Mae J. Dillomes
LEGISLATION OF THE MAGNA CARTA FOR WOMEN
Congress has recently enacted Republic Act No. 9710 known as “The Magna Carta of Women” (MCW). The new law affirms that women are holders of and claimants to human rights. It clearly places on government shoulders the duty to ensure that the human rights of women are upheld and promoted. The three branches of government at all levels and government-owned and -controlled corporations assume these obligations under the MCW. Womens rights advocates keep abreast and take advantage of positive advances in legal-standard setting in the international arena to support their advocacy and other strategies.
Under the UN Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), governments that have ratified the treaty like the Philippines have the obligation to eliminate discrimination against women and to take steps so that women, regardless of their status, condition or situation, have the opportunity to exercise and enjoy their rights. Consistent with the Cedaw, the MCW requires that government consider the specific risks and particular contexts, especially of women in marginalized sectors or those in situations of conflict, when it adopts women-specific or general programs and measures. The MCW in many respects is a model for adopting the Cedaw norms on equality and non-discrimination in a country’s legislation.
LATEST SUPREME COURT DECISION ON THE RECENT ISSUE
Recent jurisprudence upholding the rights of women against sexual discrimination in the workplace have been promulgated by the Supreme Court. A recent Decision is in the case of PATRICIA HALAGUEÑA and other flight attendants of PHILIPPINE AIRLINES vs.
PHILIPPINE AIRLINES INCORPORATED (G.R. No. 172013, October 2, 2009).
Petitioners were employed as female flight attendants of respondent Philippine Airlines (PAL) on different dates prior to November 22, 1996. They are members of the Flight Attendants and Stewards Association of the Philippines (FASAP), a labor organization certified as the sole and exclusive certified as the sole and exclusive bargaining representative of the flight attendants, flight stewards and pursers of respondent. On July 11, 2001, respondent and FASAP entered into a Collective Bargaining Agreement incorporating the terms and conditions of their agreement for the years 2000 to 2005, hereinafter referred to as PAL-FASAP CBA. Section 144, Part A of the PAL-FASAP CBA, provides that for the Cabin Attendants hired before 22 November 1996, compulsory retirement shall be fifty-five (55) for females and sixty (60) for males.
Petitioners and several female cabin crews manifested that the aforementioned CBA provision on compulsory retirement is discriminatory, and demanded for an equal treatment with their male counterparts. The thrust of the Petition is that Sec. 144 of the subject CBA is allegedly discriminatory as it discriminates against female flight attendants, in violation of the Constitution, the Labor Code, and the CEDAW. The case seeks a declaration of the nullity of the questioned provision of the CBA.
However, the Supreme Court declared that the question as to whether said Section 114, Part A of the PAL-FASAP CBA is discriminatory or not is a question of fact. This would require the presentation and reception of evidence by the parties in order for the trial court to ascertain the facts of the case and whether said provision violates the Constitution, statutes and treaties. Since a full-blown trial is necessary, the case was remanded to the RTC for the proper determination of the merits of the petition for declaratory relief is just and proper.
In the meantime, the issue of discrimination was left hanging. The Supreme Court is yet to make a ruling on this matter, should the decision of the RTC be raised up to the Highest Tribunal of the Land to form part of jurisprudence.
AN OLD YET LANDMARK JURISPRUDENCE ON THE ISSUE
A landmark case on discrimination against women in the work field is that of PT & T vs. NLRC, G.R. No. 118978 May 23, 1997. Seeking relief through the extraordinary writ of certiorari, Philippine Telegraph and Telephone Company (hereafter, PT & T) invokes the alleged concealment of civil status and defalcation of company funds as grounds to terminate the services of an employee. That employee, Grace de Guzman, contrarily argues that what really motivated PT & T to terminate her services was her having contracted marriage during her employment, which is prohibited by petitioner in its company policies. She thus claims that she was discriminated against in gross violation of law, such a proscription by an employer being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a "Supernumerary Project Worker," for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on maternity leave. Under the Reliever Agreement which she signed with petitioner company, her employment was to be immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July 1, 1991, and from July 19, 1991 to August 8, 1991, private respondent's services as reliever were again engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went on leave during both periods. After August 8, 1991, and pursuant to their Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary employee, the probationary period to cover 150 days. In the job application form that was furnished her to be filled up for the purpose, she indicated in the portion for civil status therein that she was single although she had contracted marriage a few months earlier, that is, on May 26, 1991.
It now appears that private respondent had made the same representation in the two successive reliever agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about the company's policy of not accepting married women for employment.
In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&T's policy regarding married women at the time, and that all along she had not deliberately hidden her true civil status. Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed from the company effective January 29, 1992, 6 which she readily contested by initiating a complaint for illegal dismissal, coupled with a claim for non-payment of cost of living allowances (COLA), before the Regional Arbitration Branch of the National Labor Relations Commission in Baguio City.
The Supreme Court had occasion to discuss this issue extensively with the following pronouncements:
“Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but, through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of labor, especially on the matter of equal employment opportunities and standards. In the Philippine setting, women have traditionally been considered as falling within the vulnerable groups or types of workers who must be safeguarded with preventive and remedial social legislation against discriminatory and exploitative practices in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article II on the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary thereto, Section 3 of Article XIII (the progenitor whereof dates back to both the 1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to promote full employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of Article XIII 10 mandates that the State shall protect working women through provisions for opportunities that would enable them to reach their full potential.
Corrective labor and social laws on gender inequality have emerged with more frequency in the years since the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our country's commitment as a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Principal among these laws are Republic Act No. 6727 which explicitly prohibits discrimination against women with respect to terms and conditions of employment, promotion, and training opportunities; Republic Act No. 6955 which bans the "mail-order-bride" practice for a fee and the export of female labor to countries that cannot guarantee protection to the rights of women workers; Republic Act No. 7192 also known as the "Women in Development and Nation Building Act," which affords women equal opportunities with men to act and to enter into contracts, and for appointment, admission, training, graduation, and commissioning in all military or similar schools of the Armed Forces of the Philippines and the Philippine National Police; Republic Act No. 7322 increasing the maternity benefits granted to women in the private sector; Republic Act No. 7877 which outlaws and punishes sexual harassment in the workplace and in the education and training environment; and Republic Act No. 8042, or the "Migrant Workers and Overseas Filipinos Act of 1995," which prescribes as a matter of policy, inter alia, the deployment of migrant workers, with emphasis on women, only in countries where their rights are secure. Likewise, it would not be amiss to point out that in the Family Code, women's rights in the field of civil law have been greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138 thereof. Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of women to be provided with facilities and standards which the Secretary of Labor may establish to ensure their health and safety. For purposes of labor and social legislation, a woman working in a nightclub, cocktail lounge, massage clinic, bar or other similar establishments shall be considered as an employee under Article 138. Article 135, on the other hand, recognizes a woman's right against discrimination with respect to terms and conditions of employment on account simply of sex. Finally, and this brings us to the issue at hand, Article 136 explicitly prohibits discrimination merely by reason of the marriage of a female employee.
x x x x x x x x x
In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company were dissolved principally because of the company's policy that married women are not qualified for employment in PT & T, and not merely because of her supposed acts of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware that the company is not accepting married women employee (sic), as it was verbally instructed to you." 21 Again, in the termination notice sent to her by the same branch supervisor, private respondent was made to understand that her severance from the service was not only by reason of her concealment of her married status but, over and on top of that, was her violation of the company's policy against marriage ("and even told you that married women employees are not applicable [sic] or accepted in our company.") Parenthetically, this seems to be the curious reason why it was made to appear in the initiatory pleadings that petitioner was represented in this case only by its said supervisor and not by its highest ranking officers who would otherwise be solidarily liable with the corporation.
Verily, private respondent's act of concealing the true nature of her status from PT & T could not be properly characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to retain a permanent job in a stable company. In other words, she was practically forced by that very same illegal company policy into misrepresenting her civil status for fear of being disqualified from work. While loss of confidence is a just cause for termination of employment, it should not be simulated. 24 It must rest on an actual breach of duty committed by the employee and not on the employer's caprices. Furthermore, it should never be used as a subterfuge for causes which are improper, illegal, or unjustified.
x x x x x x x x x
Petitioner would have the Court believe that although private respondent defied its policy against its female employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits as unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial matter to which it supposedly has no objection. In other words, PT & T says it gives its blessings to its female employees contracting marriage, despite the maternity leaves and other benefits it would consequently respond for and which obviously it would have wanted to avoid. If that employee confesses such fact of marriage, there will be no sanction; but if such employee conceals the same instead of proceeding to the confessional, she will be dismissed. This line of reasoning does not impress us as reflecting its true management policy or that we are being regaled with responsible advocacy.
x x x x x x x x x
Finally, petitioner's collateral insistence on the admission of private respondent that she supposedly misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat insincere and self-serving. Concededly, private respondent admitted in the course of the proceedings that she failed to remit some of her collections, but that is an altogether different story. The fact is that she was dismissed solely because of her concealment of her marital status, and not on the basis of that supposed defalcation of company funds. That the labor arbiter would thus consider petitioner's submissions on this supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a perceptive conclusion born of experience in labor cases. For, there was no showing that private respondent deliberately misappropriated the amount or whether her failure to remit the same was through negligence and, if so, whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent execute a promissory note to refund the same, which she did, and the matter was deemed settled as a peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was served her walking papers on January 29, 1992, she was about to complete the probationary period of 150 days as she was contracted as a probationary employee on September 2, 1991. That her dismissal would be effected just when her probationary period was winding down clearly raises the plausible conclusion that it was done in order to prevent her from earning security of tenure. 27 On the other hand, her earlier stints with the company as reliever were undoubtedly those of a regular employee, even if the same were for fixed periods, as she performed activities which were essential or necessary in the usual trade and business of PT & T. The primary standard of determining regular employment is the reasonable connection between the activity performed by the employee in relation to the business or trade of the employer.
As an employee who had therefore gained regular status, and as she had been dismissed without just cause, she is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of allowances and other benefits or their monetary equivalent. However, as she had undeniably committed an act of dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition of petitioner, the three-month suspension imposed by respondent NLRC must be upheld to obviate the impression or inference that such act should be condoned. It would be unfair to the employer if she were to return to its fold without any sanction whatsoever for her act which was not totally justified. Thus, her entitlement to back wages, which shall be computed from the time her compensation was withheld up to the time of her actual reinstatement, shall be reduced by deducting therefrom the amount corresponding to her three months suspension.
The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner PT & T. The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage. — It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage.
x x x x x x x x x
Further, it is not relevant that the rule is not directed against all women but just against married women. And, where the employer discriminates against married women, but not against married men, the variable is sex and the discrimination is unlawful. Upon the other hand, a requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the particular requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in one case, a no-marriage rule applicable to both male and female flight attendants, was regarded as unlawful since the restriction was not related to the job performance of the flight attendants.
Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable right. Hence, while it is true that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient, the same should not be contrary to law, morals, good customs, public order, or public policy. Carried to its logical consequences, it may even be said that petitioner's policy against legitimate marital bonds would encourage illicit or common-law relations and subvert the sacrament of marriage.
x x x the danger of just such a policy against marriage followed by petitioner PT & T is that it strikes at the very essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation. That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but imperatively required.”
CONCLUSION
Women may have greater access to legal remedy because of the prohibition and definition of discrimination that the laws like MCW provide. Human rights defenders may find additional legal bases in the law to demand accountability and end impunity for violations or denial of rights that many women continue to experience. Achieving the goals of the MCW is a monumental tasks amidst a male-oriented culture in the Philippines. The Courts and legal practitiones should remain vigilant that the magna carta and treaties for protection of women against sexual discrimination in the workplace is implemented in accordance with the visions and spirit of the laws.
By Atty. Janette Mae J. Dillomes
Competent Evidence of Identity, Cedulas,
A notarial document is by law entitled to full faith and credit upon its face and, for this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties, lest, the confidence of the public in the integrity of the document will be undermined.
A.M. No. 02-8-13-SC or the 2004 Rules on Notarial Practice (the “Rules”) took effect on August 1, 2004. It was enacted (a) to promote, serve, and protect public interest; (b) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public.
Among other matters, the Rules require parties to instruments to present competent evidence of their identity to the notary public.
On February 19, 2008, the Supreme Court amended Rule II Sec. 12 (a) of the Rules and enumerated the acceptable competent evidence of identity:
“(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulation Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification; x x x”
While the Rules require the presentation of competent evidence of identity, it does not mention community tax certificates or cedulas or residence certificates which, prior to the effectivity of the Rules, were the only documents that parties to instruments were required to present to notaries public.
Are parties to instruments required to present competent evidence of their identity to the notary in all instances?
In Cable Star Inc. v. Cable BOSS, the Supreme Court denied petitioner’s motion for extension to file petition for review “for submitting an affidavit of service of the motion that fails to comply with the 2004 Rules on Notarial Practice re: competent evidence of affiant’s identity.”
In footnote 16 of Sigma v. Inter-Alia., the Court explained that it denied the petitioner’s motion for extension of time to file petition for review, likewise for submitting an affidavit of service that does not comply with the requirement on competent evidence of identity.
And in de la Cruz v. Dimaano, the Court stated without qualification that “Rule II, Sec. 12 of the 2004 Rules on Notarial Practice now requires a party to the instrument to present competent evidence of identity”.
The foregoing pronouncements of the Court show that non-compliance with the Rules affect the notarial act itself, i.e. the document notarized is invalidated or will not be considered a public document.
These also imply that parties to instruments are required to present competent evidence of their identity every time they desire to avail of the services of notaries public. However, it is submitted that this should not be the case, since the notary is required to record in his notarial register the competent evidence of identity only if the signatory is not personally known to him. This implies that no competent evidence of identity is required if the signatory is personally known to the notary. This view is consistent with an article in the Supreme Court’s website which states that “under the Rules, Notaries Public are prohibited from notarizing documents or instruments of signatories who are not personally known to them or who otherwise fail to present competent evidence of their respective identities”.
Are parties to instruments no longer required to present their community tax certificates to the notary?
In Lee v. Atty. Tambago, the Supreme Court said:
“A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.”
Again, the Supreme Court emphasized that non-compliance with the Notarial Law invalidates the document supposedly notarized.
While in Williams v. Icao, the Supreme Court said:
“x x x The document does not bear the residence certificate number of Lucia Briones, one of the signatories. In notarizing it without recording Lucia’s residence certificate, respondent violated the Notarial Law then effective which required the notary public to certify that the party to the instrument which was acknowledged before him had presented the proper residence certificate (or exemption from the residence certificate) and to enter its number, place and date of issue as part of the certification. This formality is mandatory and cannot be neglected, failure to comply with which results in the revocation of a notary’s commission.”
But in footnote 19 of Williams v. Icao, the Court also explained that under Section 13 of the Rules, a residence certificate is no longer considered a competent evidence of identity. It therefore appears that parties to instruments are no longer required to present their cedulas to notaries public.
And the Court, in Baylon v. Almo, categorically stated that the respondent:
“…should not have relied on the Community Tax Certificate presented by the said impostor in view of the ease with which community tax certificates are obtained these days. As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have their documents notarized.”
While the Rules do not mention cedulas – in Baylon v. Almo, the Supreme Court even stated that it did not include cedulas in the list of competent evidence of identity, which seems to indicate the Court’s preference to do away with it altogether – it is submitted that these are still necessary for the proper execution of the notarial act. This is because their presentation is prescribed by various laws, such as:
1. Section 6 of Commonwealth Act No. 465 or the Residence Tax Act which states that:
“When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx”;
2. Section 249 of the Revised Administrative Act, which the Supreme Court quoted in its Decision in Williams v. Icao reproduced above;
3. Section 251 of the Revised Administrative Act:
“Requirement as to notation of payment of [cedula] residence tax. – Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.”
4. and Section 163 of the Local Government Code:
“(a) When an individual subject to the community tax acknowledges any document before a notary public, … it shall be the duty of any person, officer, corporation with whom such transaction is made… to require such individual to exhibit the community tax certificate.”
Are the Rules consistent with the laws requiring the presentation of the cedula to the notary public?
It appears that the laws requiring the presentation of the cedula have not been repealed by subsequent legislative enactments. And so these laws remain valid until the present, notwithstanding the Rules’ silence insofar as cedulas are concerned.
To be valid, the Rules must conform to and be consistent with the provisions of the enabling statute; as such, it cannot amend the law either by abridging or expanding its scope. Agencies cannot, in the guise of rule-making, legislate or amend laws or worse, render them nugatory.
But is there really a conflict between the Rules and the laws requiring the presentation of the cedula? It is submitted that there is none. The requirement for the presentation of competent evidence of identity does not abridge or expand the scope of the laws affecting notarial practice since its purpose is to protect the integrity of the notarial act. Secondly, the Rules’ silence on the matter of cedulas should not be taken as proof that these are now unnecessary.
Clearly, the laws affecting notarial practice and the Rules can be applied simultaneously, and thus harmonized. In short, the presentation of a competent evidence of identity, if required, will not bar the presentation of the cedula, and vice-versa.
Hence it is only when the party or parties is/are not personally known to the notary that they must present competent evidence of their identity to him; or in the alternative, the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. On the other hand, they must present their community tax certificates to the notary, whether or not they are personally known to him.
But to be sure, it is suggested that the notary require the presentation of competent evidence of the identity of all parties to instruments, whether or not they are personally known to him, as well as their community tax certificates. After all, it is better to be safe than to be sorry.
By Atty. Jose Mari Benjamin F.U. Tirol
A.M. No. 02-8-13-SC or the 2004 Rules on Notarial Practice (the “Rules”) took effect on August 1, 2004. It was enacted (a) to promote, serve, and protect public interest; (b) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public.
Among other matters, the Rules require parties to instruments to present competent evidence of their identity to the notary public.
On February 19, 2008, the Supreme Court amended Rule II Sec. 12 (a) of the Rules and enumerated the acceptable competent evidence of identity:
“(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulation Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification; x x x”
While the Rules require the presentation of competent evidence of identity, it does not mention community tax certificates or cedulas or residence certificates which, prior to the effectivity of the Rules, were the only documents that parties to instruments were required to present to notaries public.
Are parties to instruments required to present competent evidence of their identity to the notary in all instances?
In Cable Star Inc. v. Cable BOSS, the Supreme Court denied petitioner’s motion for extension to file petition for review “for submitting an affidavit of service of the motion that fails to comply with the 2004 Rules on Notarial Practice re: competent evidence of affiant’s identity.”
In footnote 16 of Sigma v. Inter-Alia., the Court explained that it denied the petitioner’s motion for extension of time to file petition for review, likewise for submitting an affidavit of service that does not comply with the requirement on competent evidence of identity.
And in de la Cruz v. Dimaano, the Court stated without qualification that “Rule II, Sec. 12 of the 2004 Rules on Notarial Practice now requires a party to the instrument to present competent evidence of identity”.
The foregoing pronouncements of the Court show that non-compliance with the Rules affect the notarial act itself, i.e. the document notarized is invalidated or will not be considered a public document.
These also imply that parties to instruments are required to present competent evidence of their identity every time they desire to avail of the services of notaries public. However, it is submitted that this should not be the case, since the notary is required to record in his notarial register the competent evidence of identity only if the signatory is not personally known to him. This implies that no competent evidence of identity is required if the signatory is personally known to the notary. This view is consistent with an article in the Supreme Court’s website which states that “under the Rules, Notaries Public are prohibited from notarizing documents or instruments of signatories who are not personally known to them or who otherwise fail to present competent evidence of their respective identities”.
Are parties to instruments no longer required to present their community tax certificates to the notary?
In Lee v. Atty. Tambago, the Supreme Court said:
“A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.”
Again, the Supreme Court emphasized that non-compliance with the Notarial Law invalidates the document supposedly notarized.
While in Williams v. Icao, the Supreme Court said:
“x x x The document does not bear the residence certificate number of Lucia Briones, one of the signatories. In notarizing it without recording Lucia’s residence certificate, respondent violated the Notarial Law then effective which required the notary public to certify that the party to the instrument which was acknowledged before him had presented the proper residence certificate (or exemption from the residence certificate) and to enter its number, place and date of issue as part of the certification. This formality is mandatory and cannot be neglected, failure to comply with which results in the revocation of a notary’s commission.”
But in footnote 19 of Williams v. Icao, the Court also explained that under Section 13 of the Rules, a residence certificate is no longer considered a competent evidence of identity. It therefore appears that parties to instruments are no longer required to present their cedulas to notaries public.
And the Court, in Baylon v. Almo, categorically stated that the respondent:
“…should not have relied on the Community Tax Certificate presented by the said impostor in view of the ease with which community tax certificates are obtained these days. As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have their documents notarized.”
While the Rules do not mention cedulas – in Baylon v. Almo, the Supreme Court even stated that it did not include cedulas in the list of competent evidence of identity, which seems to indicate the Court’s preference to do away with it altogether – it is submitted that these are still necessary for the proper execution of the notarial act. This is because their presentation is prescribed by various laws, such as:
1. Section 6 of Commonwealth Act No. 465 or the Residence Tax Act which states that:
“When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx”;
2. Section 249 of the Revised Administrative Act, which the Supreme Court quoted in its Decision in Williams v. Icao reproduced above;
3. Section 251 of the Revised Administrative Act:
“Requirement as to notation of payment of [cedula] residence tax. – Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.”
4. and Section 163 of the Local Government Code:
“(a) When an individual subject to the community tax acknowledges any document before a notary public, … it shall be the duty of any person, officer, corporation with whom such transaction is made… to require such individual to exhibit the community tax certificate.”
Are the Rules consistent with the laws requiring the presentation of the cedula to the notary public?
It appears that the laws requiring the presentation of the cedula have not been repealed by subsequent legislative enactments. And so these laws remain valid until the present, notwithstanding the Rules’ silence insofar as cedulas are concerned.
To be valid, the Rules must conform to and be consistent with the provisions of the enabling statute; as such, it cannot amend the law either by abridging or expanding its scope. Agencies cannot, in the guise of rule-making, legislate or amend laws or worse, render them nugatory.
But is there really a conflict between the Rules and the laws requiring the presentation of the cedula? It is submitted that there is none. The requirement for the presentation of competent evidence of identity does not abridge or expand the scope of the laws affecting notarial practice since its purpose is to protect the integrity of the notarial act. Secondly, the Rules’ silence on the matter of cedulas should not be taken as proof that these are now unnecessary.
Clearly, the laws affecting notarial practice and the Rules can be applied simultaneously, and thus harmonized. In short, the presentation of a competent evidence of identity, if required, will not bar the presentation of the cedula, and vice-versa.
Hence it is only when the party or parties is/are not personally known to the notary that they must present competent evidence of their identity to him; or in the alternative, the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. On the other hand, they must present their community tax certificates to the notary, whether or not they are personally known to him.
But to be sure, it is suggested that the notary require the presentation of competent evidence of the identity of all parties to instruments, whether or not they are personally known to him, as well as their community tax certificates. After all, it is better to be safe than to be sorry.
By Atty. Jose Mari Benjamin F.U. Tirol
Wednesday, December 2, 2009
What They Say About Delay
“I, ____________________ do solemnly swear that ... I will delay no man for money or malice ...” So help me God.” (Attorney’s Oath, Form 28, Rules of Court).
“Moreover, the omissions of respondent violated Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary. Judges are mandated to perform all judicial duties efficiently, fairly and with reasonable promptness. In other words, judges should never cause judicial delay.
Delay derails the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly prosecuted. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. More than this, possibilities for error in fact-finding multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If courts do not get the facts right, there is little chance for their judgment to be right.” (Orocio v. Roxas, 562 SCRA 347, 357 - 2008)
“ “Prolonged and unjustified delay is the major weakness of our judicial system today.” Though there is a consensus that delay is a pervasive and long-standing problem facing America’s trial courts, there is great disagreement over what is actually meant by “delay”. For research purposes, it often means the age of cases or docket backlog; to the practicing lawyer, delay is the time from announcement that the case is ready for trial until the court can reach the matter; for litigants, the public, and reformers, delay is more broadly defined to include the time from the filing to disposition. Largely depending upon the definition used by the commentator, “delay” is either a cause or a result of the massive congestion in our courts. However categorized, delay has far-reaching and long-lasting effects not only on the litigants but on the administration of justice itself. Delay brings the system of justice into disrepute and breeds disrespect for law. “Justice delayed is justice denied” may sound trite, but the plaintiff and the defendant who must wait from two to five years for the disposition of their lawsuit not only suffer frustration but either or both may suffer injustice in the outcome as well. A party’s rights may change substantially as a result of the death, the disappearance, or the dimming memory, of a witness. The sustained anxiety of the litigants and their resultant dissatisfaction with the legal system are sufficient reasons to require prompt and effective measures for the more expeditious handling of civil disputes. Chief Justice Burger has observed:
There is nothing incompatible between efficiency and justice. Inefficient courts cause delay and expense, and diminish the value of the judgment Small litigants, who cannot manipulate the system, are often exploited - to use the words of Moofield Story, a former president of the American Bar Association - by the litigant ‘with the longest purse.’ . . . Efficiency - like the trial itself - is not an end in itself. It has as its objective the very purpose of the whole system - to do justice. Inefficiency drains the value of even a just result either by delay or excessive cost, or both.” (Civil Trial Manual 2, 1980). By Atty. Cesar T. Tirol
“Moreover, the omissions of respondent violated Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary. Judges are mandated to perform all judicial duties efficiently, fairly and with reasonable promptness. In other words, judges should never cause judicial delay.
Delay derails the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly prosecuted. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. More than this, possibilities for error in fact-finding multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If courts do not get the facts right, there is little chance for their judgment to be right.” (Orocio v. Roxas, 562 SCRA 347, 357 - 2008)
“ “Prolonged and unjustified delay is the major weakness of our judicial system today.” Though there is a consensus that delay is a pervasive and long-standing problem facing America’s trial courts, there is great disagreement over what is actually meant by “delay”. For research purposes, it often means the age of cases or docket backlog; to the practicing lawyer, delay is the time from announcement that the case is ready for trial until the court can reach the matter; for litigants, the public, and reformers, delay is more broadly defined to include the time from the filing to disposition. Largely depending upon the definition used by the commentator, “delay” is either a cause or a result of the massive congestion in our courts. However categorized, delay has far-reaching and long-lasting effects not only on the litigants but on the administration of justice itself. Delay brings the system of justice into disrepute and breeds disrespect for law. “Justice delayed is justice denied” may sound trite, but the plaintiff and the defendant who must wait from two to five years for the disposition of their lawsuit not only suffer frustration but either or both may suffer injustice in the outcome as well. A party’s rights may change substantially as a result of the death, the disappearance, or the dimming memory, of a witness. The sustained anxiety of the litigants and their resultant dissatisfaction with the legal system are sufficient reasons to require prompt and effective measures for the more expeditious handling of civil disputes. Chief Justice Burger has observed:
There is nothing incompatible between efficiency and justice. Inefficient courts cause delay and expense, and diminish the value of the judgment Small litigants, who cannot manipulate the system, are often exploited - to use the words of Moofield Story, a former president of the American Bar Association - by the litigant ‘with the longest purse.’ . . . Efficiency - like the trial itself - is not an end in itself. It has as its objective the very purpose of the whole system - to do justice. Inefficiency drains the value of even a just result either by delay or excessive cost, or both.” (Civil Trial Manual 2, 1980). By Atty. Cesar T. Tirol
Summary Judgment in Annulment of Marriages Case A Taboo
It is on the principle that marriage is not a mere contract but an inviolable social institution and as the foundation of the family, the State is duty bound to protect and preserve it. In obedience to this legal truism that “judgment on the pleadings” or “summary judgment”, or even “confession of judgment,” for that matter has no place in cases of declaration of absolute nullity of marriage as well as in annulment of marriage. The rationale is not difficult to see because the grounds for the dissolution of marriages must be proved by preponderance of evidence by the party invoking the same through the trial personally conducted by the Judge.
This is precisely the reason behind that both the Civil Code of the Philippines and the Family Code of the Philippines prescribe that the Court should order the prosecuting attorney to appear and intervene for and in behalf of the State. It is to be noted that the mere submission by the public prosecutor of his report that no collusion exists between the parties would not mean the termination of the State’s participation in the proceedings. The public prosecutor, whose role among other things is the preservation of marriage, should actively participate in the trial of the case and to subject the petitioner’s witnesses to extensive and exhaustive cross examination purposely to see to it that there is no suppression as well as fabrication of evidence.
If there is still any doubt as to the propriety in the application of “summary judgment” or “judgment on the pleadings” or “confession of judgment” it has been laid to rest by the promulgation of the “Rule on Declaration of Void Marriages and Annulment of Voidable Marriages” As it is written, the Rule is explicit in its mandate that the Judge should personally conduct the trial of the case and there should be no delegation of the reception of evidence before a commissioner save as to matter involving property relations of the parties. Putting a stamp of clarity like an unexpected thundercloud looming in the horizon, the Rule also provides that no “judgment on the pleadings” “summary judgment” or “confession of judgment shall be allowed, which means that the grounds for the declaration of absolute nullity of marriage or annulment of marriage must be duly proved and established.
In the strict observance of the State’s policy to maintain the Filipino family as a foundation of the nations, the law requires in no uncertain terms the active participation of the public prosecutor or the Solicitor General in the trial of the case and not like a puppet whose string is being pulled to nod agreement to everything the petitioner says. In this way it could ensure that the interest of the State is fully represented and protected in the proceedings for declaration of nullity of marriage by way of preventing the presentation of fabricated or suppressed evidence. By Judge Globert J. Justalero
This is precisely the reason behind that both the Civil Code of the Philippines and the Family Code of the Philippines prescribe that the Court should order the prosecuting attorney to appear and intervene for and in behalf of the State. It is to be noted that the mere submission by the public prosecutor of his report that no collusion exists between the parties would not mean the termination of the State’s participation in the proceedings. The public prosecutor, whose role among other things is the preservation of marriage, should actively participate in the trial of the case and to subject the petitioner’s witnesses to extensive and exhaustive cross examination purposely to see to it that there is no suppression as well as fabrication of evidence.
If there is still any doubt as to the propriety in the application of “summary judgment” or “judgment on the pleadings” or “confession of judgment” it has been laid to rest by the promulgation of the “Rule on Declaration of Void Marriages and Annulment of Voidable Marriages” As it is written, the Rule is explicit in its mandate that the Judge should personally conduct the trial of the case and there should be no delegation of the reception of evidence before a commissioner save as to matter involving property relations of the parties. Putting a stamp of clarity like an unexpected thundercloud looming in the horizon, the Rule also provides that no “judgment on the pleadings” “summary judgment” or “confession of judgment shall be allowed, which means that the grounds for the declaration of absolute nullity of marriage or annulment of marriage must be duly proved and established.
In the strict observance of the State’s policy to maintain the Filipino family as a foundation of the nations, the law requires in no uncertain terms the active participation of the public prosecutor or the Solicitor General in the trial of the case and not like a puppet whose string is being pulled to nod agreement to everything the petitioner says. In this way it could ensure that the interest of the State is fully represented and protected in the proceedings for declaration of nullity of marriage by way of preventing the presentation of fabricated or suppressed evidence. By Judge Globert J. Justalero
Party- In- Interest in Annulment of Marriages
There are some nagging questions that have been confronting practitioners before the Family Courts especially on the cases of annulment of marriage. Foremost of which is the issue on the real-party-interest who can initiate an action to sever the marital bonds. It has been the rule and practice that the petition for declaration of absolute nullity of marriage may not be filed by any party outside of the marriage as the same is being reserved solely and exclusively to the husband or wife. The importance of the real party in interest cannot be overemphasized, like that Dutch boy with his thumb plugging the hole in the dike trying to hold the tides.
This is clear under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages by making it exclusively the right of the spouses to initiate the action. Simply put, such petition cannot be filed by the compulsory heirs or intestate heirs of the spouses for the simple reason that they have only inchoate rights prior to the death of their predecessor. If ever, they can inquire into the validity of the marriage of the spouses upon the death of a spouse in a separate proceeding for the settlement of the estate of the deceased spouse filed in the proper courts. More so, neither the State can institute an action to nullify marriages for the logical ground that the primary and primordial concern of the government is to preserve marriages and not to seek their dissolution.
A methodical examination, however, of the present Rule would show that it extends only to marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988. Further, the new Rule does not apply to cases already commenced before the date of its operation on March 15, 2003 although the marriage subject matter of the case is within the coverage of the Family Code. In other words, in the event that the marriage was solemnized before the effectivity of the Family Code, then the applicable law is the Civil Code which was the law in effect at the time of its celebration and in that case a direct action to declare the marriage as void may be filed and not necessarily in a settlement of the estate proceedings. But the catch is the same can only be filed by the real party in interest purposely to protect their successional rights.
This brings us to the question as to who is the real party-in-interest who can bring an action to declare the marriage as null and void in the event that the marriage was solemnized under the auspices of the Civil Code of the Philippines. Party-in- interest as understood in our civil law means material interest or an interest in issue to be affected by the decree or judgment of the case. In a petition to declare the nullity of marriage, it must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action. For instance, under the law on succession, the children, as compulsory heirs, and by operation of law have the personality to file the petition to declare the nullity of marriage of their deceased father to their stepmother as it affects their successional rights.
In the presence of the compulsory heirs, it is readily apparent that brothers and sisters as well as other collateral relatives of the deceased spouse are not the real party-in-interest to bring an action for the declaration of nullity of marriage of the latter. This is so because the presence of the legitimate, illegitimate, or adopted child or children of the deceased spouse who are considered as compulsory heirs precludes succession by collateral relatives and their right is as ephemeral as the moonlight that illuminates the night. The impression is only in the possibility that there are no compulsory heirs that collateral relatives, as real party-in-interest, may bring an action to declare marriage as void since they shall be called upon to succeed to the entire estate of the decedent. By Judge Globert J. Justalero
This is clear under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages by making it exclusively the right of the spouses to initiate the action. Simply put, such petition cannot be filed by the compulsory heirs or intestate heirs of the spouses for the simple reason that they have only inchoate rights prior to the death of their predecessor. If ever, they can inquire into the validity of the marriage of the spouses upon the death of a spouse in a separate proceeding for the settlement of the estate of the deceased spouse filed in the proper courts. More so, neither the State can institute an action to nullify marriages for the logical ground that the primary and primordial concern of the government is to preserve marriages and not to seek their dissolution.
A methodical examination, however, of the present Rule would show that it extends only to marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988. Further, the new Rule does not apply to cases already commenced before the date of its operation on March 15, 2003 although the marriage subject matter of the case is within the coverage of the Family Code. In other words, in the event that the marriage was solemnized before the effectivity of the Family Code, then the applicable law is the Civil Code which was the law in effect at the time of its celebration and in that case a direct action to declare the marriage as void may be filed and not necessarily in a settlement of the estate proceedings. But the catch is the same can only be filed by the real party in interest purposely to protect their successional rights.
This brings us to the question as to who is the real party-in-interest who can bring an action to declare the marriage as null and void in the event that the marriage was solemnized under the auspices of the Civil Code of the Philippines. Party-in- interest as understood in our civil law means material interest or an interest in issue to be affected by the decree or judgment of the case. In a petition to declare the nullity of marriage, it must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action. For instance, under the law on succession, the children, as compulsory heirs, and by operation of law have the personality to file the petition to declare the nullity of marriage of their deceased father to their stepmother as it affects their successional rights.
In the presence of the compulsory heirs, it is readily apparent that brothers and sisters as well as other collateral relatives of the deceased spouse are not the real party-in-interest to bring an action for the declaration of nullity of marriage of the latter. This is so because the presence of the legitimate, illegitimate, or adopted child or children of the deceased spouse who are considered as compulsory heirs precludes succession by collateral relatives and their right is as ephemeral as the moonlight that illuminates the night. The impression is only in the possibility that there are no compulsory heirs that collateral relatives, as real party-in-interest, may bring an action to declare marriage as void since they shall be called upon to succeed to the entire estate of the decedent. By Judge Globert J. Justalero
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