Happy New Year! (One Law Blog A Day Starts Now)

My New Year's Resolution is to write one law blog a day. :)

I am starting this year with sharing two basic concepts that I always remind my listeners in our radio program Batas ng Bayan at the Radio Mindanao Network.

NUMBER 1. Agreements should be in writing.

Not because no one is worthy of trust but because memory often fails us. Even simple loan contracts like I will pay the 100 pesos that I borrowed three months from now with no interest may cause confusion if not written down. The date of payment may be an issue. Whether or not there is an interest may become a bone of contention. The amount may also become a source of argument. But when the loan agreement is written down and signed by both parties it at least minimizes the possibility of discord.

Also some transactions should be in writing in order to have a binding effect. The rate of interest for example in loan agreements. A sale of real estate if not in writing is also unenforceable. These are just two transactions that requires that they be in writing. :)

NUMBER 2. Conversion of the husband to Islam without the other spouse converting to the same faith will not qualify him to marry another.

The application of P.D. 1083 or the Code of Muslim Personal Laws of the Philippines will not apply to their marriage if only the husband converts. It requires that both spouses convert into the Islamic faith.

The usual case in our jurisdiction is that a husband converts to Islam and marries another in a Muslim rite. This is contrary to law and can make him liable for bigamy, concubinage and even violation of R.A. 9262. :)

This is it for today. Happy New Year! If you have any topics that you want me to discuss do send me an email at psychefontanilla@gmail.com or post them in the comment portion of this blog. :)

Relevant Laws Of 2012

Year 2012 is a prolific year for the passing of much needed laws in our country. 

One practical and much needed law that was passed this year is Republic Act 10172. The law allows for the correction of clerical error in the birthday and/or month as well as sex of a person without the need of a court proceeding. This makes the proceeding an administrative one which is less tedious and economical.

The Sin Tax Reform Act of 2012 (RA 10351) was signed into law December 20 of this year. This law aims to to generate more revenue from alcohol and cigarettes while discouraging their consumption. It ensures that the  eighty per cent of the money collected from excise taxes on these vices will fund universal health care. It seeks to simplify the current taxation scheme on these items. It also lifted the price/brand classification freeze on these vices so that they can be taxed accordingly.

The passage of the Anti-Enforced Disappearance Act of 2012 (RA 10350) officially eliminates the notorious OB or Order of Battle of the military and the police.  It also prohibits the "arrest, detention, abduction or any other form of deprivation of liberty committed by government authorities or by persons or groups of persons acting with the authorization, support or acquiescence of such persons in authority, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such person outside the protection of the law.  

The Cybercrime Prevention Act (RA10175) though effectively suspended up to January of next year and considered by some as seriously flawed is still a welcome development. The law aims to fight crimes in the internet such as child pornography, spamming, cyberse, hacking and theft of identity.

These are just some of the relevant laws that were passed last year. We are still awaiting the signing of the Reproductive Health Bill by the president as of this writing and the vote on the Freedom of Information Bill. There is also a proposed expansion of the Anti Trafficking in Persons Act of 2003 to cover greater protection to women and children who are the consistent victims of the types of crimes prohibited by this law. It is hoped that 2013 will bring more useful laws and the updating of some that have not kept abreast with the time.

Published in Sarangani Journal 

What to do when you receive a criminal complaint against you

1. Consult a lawyer so that she can draft the counter-affidavit for you.
   
   Remember the respondent (the person being complained of, which in this case is you) has only ten days to submit a counter-affidavit.

   Otherwise, the case will be submitted for resolution based only on the evidence and the affidavit submitted by the complainant.
   
   
   

   The respondent can also file a motion for extension to submit counter-affidavit in cases where she is having a difficulty looking for witnesses who will support her claim or any other reasonable circumstances that would delay her ability to submit her counter-affidavit.
   
   It is always best though to submit all pleadings on- time :)
   
   This is an answer to a text query yesterday and portion of an answer to the question asked over the radio: "Attorney, unsa ba gyud di-ay ang step by step sa kaso?" (Attorney, what is the step by step to a case?)
   
   Portion because the step by step varies depending on whether it is a criminal case, civil case, special proceeding, labor case, tax case etc., and what particular kind of case. As well as in what stage of the proceedings :)
   
   Hope this helps the person who sent me the text message :)
   
   

Petition for Annulment/Declaration of Nullity For OFWs

One of the frequently asked questions that I encounter from Overseas Filipino Workers on Facebook is can they file a petition for declaration of nullity or annulment of their marriage. So as to start the ball rolling and they can just come home from time to time for the necessary appearance.

The answer to this question is yes.

The number one stumbling block in filing a petition for declaration of nullity or annulment is usually how the verification and certification of non-forum shopping be notarized considering that the lawyer hired is located here in the Philippines and the client is abroad.

Section five paragraph three of the Rule on declaration of absolute nullity of void marriages and annulment of voidable marriages allows for the verification and certification to be authenticated by "the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country."  

Thus the petitioner can send back the authenticated petition to her lawyer and the lawyer can file the petition in court and the ball can start rolling without the presence of the petitioner here in the Philippines but she still has to appear for most parts of the proceedings.

Grounds For Annulment.

Choose the letter of the correct answer. Type your letter of choice and your phone number at the comment portion of this blog. Be the 8th person with the correct answer and win gift certificates from Thirsty.

Which of the following is not a valid ground for annulment? 

(A) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

(B) Psychological incapacity;

(C) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

(D) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

(E) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(F) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

(G) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

People v. Marti

G.R. No. 81561 January 18, 1991
J. Bidin.

Statement of Facts:

Andre Marti and his common law wife Shirley Reyes left a package at Manila Packing and Export Forwarders in Ermita Manila for shipment to their friend in Zurich Switzerland. The package was processed by Anita Reyes the proprietress but she did not individually opened them. She was informed by Marti that the packages contained books, cigars and gloves. The proprietor Job Reyes before sending the packages to the Bureau of Customs inspected them and found out that the pacakages contained dried marijuana leaves. He coordinated with the authorities which resulted to the filing of a case against Andre Marti.

Issue:

Whether or not the marijuana leaves are product of an illegal search and thus should not be admitted as evidence.
  
Held:  

The Court ruled that the marijuana leaves are admissible since it was not the agent of the state who searched the parcels but a private individual who then coordinated with the NBI. 

Ratio Decidendi:

 

"As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence*** complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged."

Zumba Baby!

Zumba is five minute segments of hell and everyone around you is smiling.

I woke up at five thirty today. My first text was from Rose my blogger friend asking me if I am already awake. I texted that I was going while donning my hijab and lacing my shoes.

At exactly 5:55 I was at the RoadHaus Hotel.

At about six I was on my feet dancing like crazy, smiling, having fun and giving it my all to the zany fitness phenomenon that is ZUMBA!

The pure fitness bliss only lasted for twenty minutes. After that all hell broke lose for me. I felt a searing pain in the soles of my feet. I could barely breathe. I could not keep up. I noticed I was taking frequent water breaks. I was modifying the dance steps. 

The two things that were keeping me from stopping was Rose's encouraging words and my shame of being outdanced by women who were clearly in their sixties.

I was in PAIN! That was when I started counting and realized that most of the music last for five minutes. I told my self you can do it. Five minutes at a time.

I also had to remind myself that I am doing this for myself. Better to know the cause of my body pain than to continue enduring the pain in my lower back with a mysterious cause.

At about seven fifteen the two instructors were finally done administering their  musically induced torture and the staff from the hotel told us that they have 120 pesos breakfast buffet or a 49er breakfast meal.

Sayang wala akong dalang pera at may hearing ako hehehe

So will I be coming back for more?

Definitely! For the breakfast buffet! 

Hahaha joke lang.

Yes I will definitely go back and dance my heart out for fitness and to better equip myself with the strength to push the baby out once I am pregnant hehehe :)

Sample Direct: Petition to Reduce Bail Usual Questions

Any petition for reduction of bail always requires a hearing.

The witnesses that are often presented are the accused himself  and/or a relative. They will testify that the accused is not a flight risk and that he could not afford the amount set for bail but could only produce a certain specific amount.

Every direct examination starts with the offer of the testimony.The lawyer usually starts his direct after the witness is sworn.The lawyer usually seeks the permission of the court by saying these: "with the kind permission of the Honorable Court" or "May I proceed you Honor.

Sample Direct Accused

Lawyer: The testimony of the witness is being offered to prove that the he could not afford the bail set. It is also being offered to prove that the accused can only post a bail of forty thousand pesos (usually half of the amount set for bail or an amount that the accused, his family and/or friends can raise) and that he is not a flight risk.

Mr./Ms. Witness, Where are you residing?

How long have you been a resident of Glan, Sarangani Province? (say he/she is a resident of Glan)

Where there instances that you left the municipality of Glan?

What was the purpose why you left Glan?

How often do you leave the Municipality?

Who are the persons who stay with you in your residence?

Who provides for their sustenance?

What is your source of livelihood?

What is your monthly/weekly/daily income? (depending on the mode of payment if employed or mode of return if engaged in a business)

What kind of materials is the house that you are you living in made of?

What are the appliances that you have in your household?

Who owns these appliances?

How much is your electrical consumption?

Who pays for your electricity?

What crime are you accused of?

Were you arrested?

How much is the bail set for your temporary liberty?

Were you able to post bail?

Why were you not able to post bail?

What is the amount that you can afford in order to post bail?

Who raised this amount?

Add these questions if the witness/accused is already old:

How old are you?

How do you find the conditions of your detention?

End your direct by saying thanks to the witness.

"thank you Mr. Witness and That would be all Your Honor"

Sushi @ the Kee's Cafe and a Peek @ the Roadhouse Hotel

I miss the SOCSARGEN bloggers.

So last Friday when I saw the post for two activities open to bloggers I immediately texted my blogger friend that we should join the activity. 

I was not disappointed. First stop was the RoadHouse Hotel of Cong. Pacquiao and wife Jinkee.

I took pictures of the Lobby and and the superior room (me as the model) with my much missed bloggers sheng and rose.

superior room

Of course I had to ask for the room rates. The promo rates range from 2,240 -3,200 (Php). You can ask for more details by calling them at  083 553-1771 or  by visiting their website at www.roadhousehotel.com.

Next stop is at Kee's cafe where we were treated to lots and lots of yummy sushi. The menu was officially launched last October 6, 2012 with us bloggers as the first tasters.

Yummy and super sarap was all that I could mutter while gobbling the california maki and assorted sushi. The ahi tuna poke or spicy tuna stung my tastebuds but I kept scooping from the bowl. Maanghang pero sarap na binabalik-balikan! Thank you Sir Avel :)

Ahi Poke

Of course for a price conscious person like me I had to ask for the price of the items that we tasted for free. The manager told us that the price is still not set so I had to content myself with looking at the price of coffee for the cafe.

Their coffee sells at a 55-120 price range. Quite acceptable considering the location of the cafe which is accessible to those who are located downtown and residents of Purok Malakas. The cafe is part of the RoadHouse Hotel Complex which is located at Aparente Street Corner Block 0 Brgy. Dadiangas City Heights.

Assorted Sushi

The cafe is a good place to bring visitors and friends who would want to taste fresh tuna sushi! Yummy! 

Hope I can have a taste of their coffee and other beverages soon and lounge on these comfortable chairs. :)

“Cybercrime Prevention Act of 2012″ Primer

What is the origin and structure of the law?

The law RA 10175 is a consolidation of Senate Bill No. 2796 and House Bill No. 5808. It was approved into law by the President on September 12, 2012. It is composed of thirty one sections and became effective today October 3, 2012 fifteen days after its publication in the Official Gazette and newspapers of general circulation.

What are the key components of the law?

It defines a number of terms such as interception, cybersecurity, subscriber’s information and traffic data or non-content data.

It identifies cybercrime offenses.

It provides for the penalties for the violation of the defined offenses.

It identifies the Philippine National Police and the National Bureau of Investigation as  the key enforcement agencies.

It allows for the real-time collection of traffic data for mere due cause based on the assessment of law enforcement agents. [Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service Sec. 2 (p)] 

It compels service providers to cooperate with the authorities in the gathering and recording of traffic data or even content data.

It allows the authorities to intercept, copy and block data by virtue of a search and seizure warrant.

It allows the Department of Justice to block a data  when it sees at first glance that  the data is violative of the law.

It gives the Regional Trial Court jurisdiction over cases involving the law and ambitiously aims to create "designated special cybercrime courts manned by specially trained judges."

 It creates an Office of Cybercrime within the Department Of Justice.

It creates a  Cybercrime Investigation and Coordinating Center (CICC) and defines its powers and functions.

It appropriated 50M for the implementation of the law.

What offenses are punished by the law?

1. Hacking.

2. Using computer devices to commit cyber crimes

3.  Cybersquatting - stealing a domain in bad faith


4. Computer forgery and fraud.

5. Computer identity theft.

6. Cybersex

7. Child pornography

8. Spamming of commercial advertisement

9. Libel as defined in the Revised Penal Code

10. All crimes under Special Laws and the Revised Penal Code, "if committed by, through and with the use of information and communications technologies."

Source: An Act defining cybercrime, providing for the prevention, investigation, suppression and imposition of penalties therefor and for other purposes.

WCPD: The Importance Of Socially Aware and Well Trained Cops In Law Enforcement for Women and Children's Concern

As-Salamu Alaykum. Peace be upon you.

I am very grateful for the invitation extended to me to be the guest of honor in your 10 day training for Women and Children Protection Desk Officers closing ceremonies.

I am always happy when the Philippine National Police invites me to speak in any of your trainings. Attributed perhaps to the fact that I am the wife of a policeman. And also because I have always always believed that an intelligent and socially aware police force is an asset of the nation.

I am extremely happy more so in this occasion to speak in front of you because you have just recently finished a training that specifically gears you to become better police officers particularly on women and children’s concerns.

The trainings that you just so recently finished is important. “The 2008 National Demographic and Health Survey (NDHS) posited the following statistics that:

• one in five women aged 15-49 has experienced physical violence since age 15;

• (37%) of separated or widowed women have experienced physical violence,

• one in twenty five women age 15-49 who have ever had sex  experienced forced first sexual intercourse;

• in 2010 the number of VAW cases reported to the Philippine National Police (PNP) rose by 59.2 percent from the 2009 report.”#

In an article published in bulatlat.com# a left leaning on-line publication it stated that “one child is raped every two hours and 30 minutes,” and that “one child becomes a victim of sexual harassment every seven hours.” The author further wrote that in January 2000 to August 2011 some 500,000 women fell victim to prostitution and 100,000 of these victims were children.

       

These grim statistics tells us how pressing and urgent is the need to have an effective and efficient response to the situation faced by every Filipina woman and her child.

These is where our well equipped and well trained police force comes in. Your participation in the ten day training tells me that you are the frontliners of your police station or your unit when it comes to women and children’s issues.

I Googled  your training module and I found out that it includes gender sensitivity, specialized investigation techniques and basic orientation on laws involving women and children.

I am impressed with the content. It gave me hope that no matter how depressing the statistics are, there are police officers like you who are trained to respond to these specific problems.

I am more so hopeful that we have numerous laws that protect our women and children like the Anti-Rape Law of 1997, the Rape Victim Assistance and Protection Act of 1998, Anti-Trafficking in Persons Act of 2003, The Special Protection of Children Against Child Abuse, Exploitation and Discrimination , The Anti-Violence Against Women and Their Children Act and the Magna Carta Of Women.

I can go on and on about the numerous laws and rules that protect our women and children but without a highly trained police force to enforce them, all these laws will amount to nothing.

That is how important your ten day training was and I hope that what you have learned here you will bring back to your “tropa” and enforce and implement them correctly.

I can speak more about children, women and heck even about loving a policeman but I would already be taking up your time and I know that you are tired and raring to go home so I will end these speech with a thank you for the invitation and a reminder that no matter how unrecognized and only the bad cops are featured in the news most of the time we know that in the past ten days you have been a party to a training that would mean a lot in improving the plight of women and children. Congratulations and God Speed*

Speech given as guest of honor for the closing ceremony of the Specialized Course for WCPD Officers.

Sources: http://pcw.gov.ph/statistics/201205/statistics-violence-against-filipino-women
http://bulatlat.com/main/2012/03/09/statistics-on-various-crimes-against-women-alarming-%E2%80%93-cwr/

Separate Ways

One of the frequently asked questions that I get in the radio is  this:

"Atty. me and my husband had been separated for more than 7 years now. He has a new partner and I have a new partner as well. Can I marry my new partner and can my husband still sue me?"

I usually answer this way:

"I understand your predicament. Love was lost a long time ago. The partner that you have is more of your husband than the one that you married a long time ago. In the eyes of our law however, you and your husband are still married and he can still sue you.

Our law here in the Philippines provides that a person who is married can only remarry if:

1. His husband or wife died.

2. The married person filed a petition for declaration of absolute nullity of void marriage and the said petition was granted.

3. The married person filed a petition for annulment of voidable marriage and the said petition was granted.

4. The couples are Muslims and they were divorced.

and

5. The married person filed a petition for declaration of presumptive death and said petition was granted.

All these, except death of the other spouse requires court proceedings both civil or in the Shariah court.

The point that I want to emphasize is that mere absence or distance without a proceeding will not dissolve the marriage. In order for the marriage bond to be dissolved the State must interfere. 

As to whether he can sue you, the answer is yes and the case would be adultery. "

I usually elaborate further but that would be for another blog.

For those who wan to know more. Here is the link for the rules on annulment and declaration of absolute nullity of marriage. Click here. 

ESSAY WRITING CONTEST

Win two tickets to the Campaign Management and Election Related Law Seminar. September 26-27, 2012. KCC Convention Hall.

Write an essay on "Philippine Election and Election Laws."

Entries should not have been previously published in professional media or blogs.

Double spaced.

Write your cellphone number on the top of your essay. DO NOT WRITE YOUR NAME. Submit at Fontanilla and Fontanilla-Mamadra Law Office. 3rd Floor Gonzales Building Pioneer Avenue General Santos City or email to psychefontanilla@gmail.com

Essays will be judge by the Senior Partner of our Office, a law professor and a judge.

Submit your entry on or before September 10, 2012. (Deadline extended to September 18, 2012)

Prize includes a one night stay at the Sun City Suites General Santos City.
Cash of 3,000.00 Php
Plaque which will be awarded by either COMELEC Chairman Sixto Brilliantes or Atty. Ferdinand Rafanan on the day of the Seminar. :)

Contest open to anyone. No age limit. :)

Campaign Management and Election Related Laws Seminar.

Campaign Management and Election Related Laws Seminar.

Date: September 26-27, 2012
Time: 8:00-5:00
Venue: KCC Convention Hall
Speakers are from the UP NCPAG, Lawyers and COMELEC Officials.

Regular Ticket Price: 3,000.00
Early Bird Ticket Price: 2,000.00 pay on or before September 10, 2012
Student Ticket Price: 1,000.00

Tickets at Fontanilla and Fontanilla-Mamadra Law Office. Third Floor Gonzales Building Pioneer Avenue. General Santos City. :)

Walk-Ins are not allowed.

We have sponsorship packages. Do inquire 09108093998 and 09173127912. :)

Are We Safe?

I am writing this article in my work area. The television is in the other room. The news is blaring regarding the floods in Metro Manila. It is almost similar to the Bagyong Ondoy experience where I was trapped in a hostel where I stayed for the 2009 BAR Exam.

The news made me think if the Local Government Unit of General City is ready for a similar disaster. It made me remember the numerous environmental laws that we have and question the state of implementation of these laws particularly here in GenSan.

A quick glance at the Rules of Procedure for Environmental Cases A.M. No. 09-6-8-SC promulgated by the Supreme Court sometime in 2010 would show more than twenty five (25) laws pertaining to the environment and it still does not mention the Climate Change Act of 2009. 

A thorough reading of these laws would  tell us that the disasters that we face from time to time should not be a reality because the laws that we have are sufficient to prohibit or regulate actions that are environmentally harmful.

Beyond regulation and prohibition, a new law, the Climate Change Act of 2009 specifically recognized the correlation between climate change and disaster risk reduction. The law in fact espouses the  creation of a national and a local climate change action plan to assess  the impact of climate change, anticipate disasters and if need be manage the risks.

I hope that our city has a comprehensive and effective climate change action plan. Otherwise, I might have another Ondoy experience not in Metro Manila but here in Gensan.

 

*previously published in the Sarangani Journal.