Tuesday, December 26, 2006

Spending Christmas

Christmas is the time of giving sharing one's blessings to others, sharing time with God's children who may need our companionship the most, specially at this time.
It has been our habit to be with God's special children during Christmas time, the orphaned and abandoned tots who do not have parents with whom they can spend Christmas.
Since we spent Christmas in Bohol with our grandmother and uncles, aunts and cousins, we visited our little friends at the Sunshine Home, the home of abandoned children and orphans.
Children at the Sunshine Home is a project of the Bohol Catholic Women's League of which my grandmother, Mommy Charing, remains an active member
The Sunshine Home is the project closest to her heart.
She relayed to us her children and grandchildren that they (CWL) have helped take care of abandoned children, specially children of prostitutes who just leave their children with relatives, who also could not properly take care of these children.
The Sunshine Home provides shelter and opportunities for growth for these children.
When we visited Sunshine Home today December 25, there were some training equipment for the children like computers, sewing machines which could help train them and provide skills as they grow.
Many of the children are still young and are in dire need of parental love and care.
So on this rainy Christmas afternoon, Mommy Charing, our aunts, Malou (who is based in New Jersey), Milet and Mamel and my wife Ruby and son Josh, cousins Daniel and Nikka shared our time with God's little children who could not spend Christmas the way many others spend theirs.
We brought them ice cream and cakes, while they performed songs for the visitors.
One child, Reynan, who is among the youngest at three could not escape our attention as he was very very entertaining.
There are twenty five boys and girls at Sunshine Home. They are taken care of until they graduate from high school.
Therafter they leave and look for homes where they can work and study for college as working students.
It is with these special children that I am really able to deeply appreciate the real meaning of Christmas.
The children I met today, Reynan, Peter, and the others, have no parents to spend Christmas with.
Yet, I saw in them incredible joy, all of them smiling, and very eager to perform for us, their visitors on Christmas.
This is in contrast with others who spend their lives complaining almost about everything that come to them.
The children probably receive no gifts on Christmas eve. Yet they were very willing and eager to give us gifts through songs and dances.
Want to know the real meaning of Christamas?
Spend December 25 with God's special children.

Sunday, December 24, 2006

Broadcaster gets death threats

While here in Bohol on vacation, I received word that a fellow journalist and broadcaster, doing this thankless job of an information diseeminator in the outskirts of the remote town of Ubay, has receved threats to his life.

Senior management says the threat is serious.

The radio broadcaster received a message through text that he is supposed to be liquidated by a hired assassin for a measely sum of P20,000.

The family newspaper, the Bohol Chronicle (www.boholchronicle.com) published an article on this story on its latest publication:


"Broadcaster gets death threat

By WENNY REYES

Ubay, Bohol. A local radio broadcaster has reported receiving a text message containing threats against his life.
The message he received alleged that the broadcaster was to be liquidated by a hired gunman at the price of P20,000.00.
The mastermind is allegedly a local politician and businessman.
During “Inyong Alagad” program simultaneously aired over dyRD and dyZD, in Bohol province, program host of “Sakada” Quito del Valle disclosed that he received a text message, the sender of whom introduced himself as the contact person, saying in vernacular that he (contact person) was tasked by a local businessman who is also an elected public official (identity withheld) to hire a killer to liquidate a radio announcer (del Valle), in the amount of P20,000.
Accordingly, the contact person was able to find one from Pilar town who asked for an advance payment of P5,000 plus the firearm to be used.
The message continued that the plotter (businessman) issued the gun and gave only the amount of P3,000 and changed the target person from del Valle to a local sanguniang bayan member, kagawad. Isidore “IC” Besas. This, on orders from a high official, del Valle quoting the same text message.
Considering the change of personality as target of the assassination plot, the hired killer would ask for a higher fee even as the advance payment was already handed over.
Three days after the elected official and businessman who ordered the killing asked the contact person why nothing has happened yet. Then, the mastermind allegedly pinned “the blame on me that I kept the money and the gun. For fear of my life and safety I left Ubay,” the alleged contact person for the gun-for-hire disclosed in one of his text messages to del Valle.
The radio anchorman said the sender who is hiding somewhere in Leyte, is willing to execute an affidavit to attest the veracity of the text message.
The same message is now being referred to PNP Prov’l Director Arturo Evangelista and Gov. Erico Aumentado for their appropriate action.
Kagawad. Besas is a last termer lawmaker who is eyeing to run as mayor in Ubay. When contacted by the Chronicle, Besas said he has yet to verify the threat."




Christmas eve

It's Christmas eve. I am spending Christmas in Bohol with relatives.
It was a hectic 24th day of December.
We went to Pamilacan island off Bohol island. We had such a nice time in such a nice island.
The island is a virgin, with everything unadulterated.
Then in the evening we had catered dinner with the relatives who came from all over.
Some just arrived today.
Then we had a Christmas program, and the traditional gift-giving.
My grandmother Mommy Charing distributed cash to her nine children and even to granchildren, and even great granchildren.
I have learned this lesson in life that one of life's greatest blessing is to have generous parents.
Somehow in the event, there is some emptiness still inside me.
I realized I need to focus on the true meaning of Christmas.
It is to remember and commemorate the birth of my Lord and Savior Jesus Christ.
He has been my life's ally.
I shall continue to rely on his guiding light in the next year and the years to come.
With this thought, my Christmas is complete.
Merry Christmas.....

Saturday, December 23, 2006

19th century Christmas Belen

Part of the Filipino Christmas tradition is the setting up of Christmas Belens. This goes together witht he setting up of Christmas trees to spruce up homes with the scent and feeling of the yuletide season.
We are spending Christmas in Bohol, hometown of my father, and incidentally, the place of my birth.
This will be the first time in decades that we will spend Christmas in Bohol, although each year, we come to Bohol to spend the New Year.
We went to the town of Loay today for a dinner invitation.
In the refurbished ancetral house of our uncle, we saw perhaps one of the oldest Christmas Belens in the province, if not in the country.
A Christmas Belen, by the way, is a depiction of the nativity, where little figures or miniature statues of the main players of the nativity, like Joseph and Mary, the infant Jesus, the shepherds, the three kings, the angels, among others.
In our grandparents' home, we depict the scene of the nativity with a lot of motorized figures just to make the Belen interesting to watch.
It was very innovative that for years, it was an attraction to many people who dropped by our grandparents home.
Anyway, in Loay home where we were invited for dinner, we saw a Christmas Belen which according to our hosts Grace, was a 19th century Belen, as it was the Belen of their great grandparests yet in 1895.
We marveled at this sight, as it graciously portrayed the scene of Jesus birth, with all the angels above.

Thursday, December 14, 2006

Criminal liability of a fake lawyer

One who performs the duties of an attorney even if he is not licensed to practice, can be held criminally liable.
First, this is a kind of usurpation which is punishable in the Philippines under the Revised Penal Code.
He can be held liable for "Usurpation of authority of official functions", under Article 177 of the criminal code.
This provision punishes a person who perofrms any act "pertaining to any person in authority or public office of the Philippine government ....or any agency thereof, under the pretense of official position, and without being lawfully entitiled to do so."
Lawyers,at least in the Philippines, are "officers of the court", hence public officers of the Philippine government or its agency.
In the case of a fake lawyer, who executes an affidavit---a sworn statement---he can be held, in addition, for perjury.
Perjury is also punishable under Article 183 of the Revised Penal Code of the Philippines.
Perjury punishes a person who executes in an affidavit upon a material matter, a willful and deliberate assertion of a falsehood, made before a competent officer authorized to receive or administer oath, which affidavit is required by law.
So a fake lawyer could be facing two criminal offenses.
My client, who was charged by this fake lawyer can initiate this criminal charge.
As a matter of litigation strategy, this would be a counter-move to "break down" the opponent.
However, the judicial autorities cannot act by itself (motu proprio) against this fake lawyer, because he is not under supervision of the Supreme Court, simply because he is not a lawyer.
Once I get that certification from the Supreme Court, this fake lawyer will be in hot waters.

Wednesday, December 13, 2006

Spotting a fake lawyer

Nowadays, it is easier to spot a fake lawyer.
I refer to a fake lawyer to one who claims to be a "lawyer by profession" but who actually is not because he has no license to do so.
Somebody filed a criminal complaint against my client. In his complaint affidavit, he claimed he "is a lawyer by profession"
I scoured over the attachements in his complaint, and he wrote a letter against my client and referred to himself as "Atty." --short for attorney.
While he placed his Professional Tax Receipt No. (PTR), he did not place his roll number.
That raised some signals in me.
Why would a lawyer write his PTR, but not his Roll number?
A roll number is a permanent number assigned to every lawyer. Its like one's Tax Identification Number, or Social Security Number.
I have mine, 42840.
Actually, a lawyer gets this number once he signs the roll of attorneys upon passing the bar. He is given a receipt that has a number,which becomes his Roll number, meaning his number in the roll of attorneys in the Supreme Court.
Normally, it would be a little inconvenient to verify whether one who claims to be a laywer is indeed licensed to practice law.
You would have to go to the Supreme Court and get a certification, based on the records in the roll of attroneys.
But nowadays, lawyers are listed in the list of lawyers in the website of the Supreme Court at www.supremecourt.gov.ph
Just click on the law list and you will arrive at an alphabetical listing of all lawyers, dead or living, with their respective dates of admission to the bar, their homeprovince and roll numbers.
Just as my instincts told me, the complainant who claimed to be a "lawyer by profession" is not in the lawyer's list.
Of course to charge this person criminally, I would have to get an official certification from the Supreme Court.
But for me, I have no reason to doubt the integrity of the lawyers' list in the website of Supreme Court.
Even during our student days we have been told of stories about people pretending to be lawyers, even arguing in court, and arguing much better than licensed lawyers.
This one may yet be my first actual encounter of a fake lawyer.




Senate hearing on charter change

The Senate conducted consultations from constitutional experts, in the same manner that the Supreme Court invites amicus curaei in resolving important issues before it.
The main issue in the hearing last Monday was to listen to constitutional experts on the matter of whether the Senate and the House of Representatives should vote separately in the process of convening a constituent assembly to propose changes in the constitution.
This was the Senate's response to the House's challenge to the Senate to pass within 72 hours a resolution calling for a constitutional convention.
Appearing guests included constitutionalists Fr. Joaquin G. Bernas, Christian Monsod, both memebrs of the 1986 constitutional commission that draft the present constitution.
Also present was former Cebu governor Pablo Garcia, a member of the 1971 constituional convention.
They were one in saying that this is not the right time to even talk about changing the constitution because the atmosphere is so engulfed in intense partisanship and political turmoil that a rational decision on charter change would not be attainable.
The Senate met as a committee of the whole and held the hearing at the session session hall.
There were also other guests like Atty. Jovy Salazar, President of the Integrated Bar of the Philippines, former Senator John Osmena, Willy of the Kilusang Magbubikid ng Pilipinas, UP law professor Gwen De Vera, and some youth leaders.




Down with flu

I am down with flu for the past two days already.
While I am statying at home, still its work that dominates my day.
Yesterday, while having fever, I decided not to attend the pre-trial and just called up the court and the opposing counsel.
Still the judge fined me P200 for not attending.
This is really a problem in procedure. A counsel hasn't filed any motion to postpone, because he was really bent on attending the hearing.
But on the morning of the hearing, he experiences ill health preventing him from attending.
What can be done?
Anyway in the afternoon, while having head-wrecking colds, I went to file a motion with the Quezon City trial court, just to beat the three day notice rule.
The scorching heat made by condition worse.
Today I have to file pleadings to the Court of Appeals. Fever or no fever because its deadline.
That's the kind of job lawyers have which many do not get to see.
The deadlines do not accord a time out, fever or no fever.

Sunday, December 10, 2006

Working weekend

It's been a tough weekend. It's been a working weekend.
I hate working on weekends.
But I have deadlines to beat, pleadings to make.
I have to prepare for the coming work week.
It's a rainy Sunday today. It rained all day.
I am having colds.
The rains have been caused by the passing typhoon called Seniang.
The storm did not hit Metro Manila. Nor did it hit Cebu, which was supposed to host the 12th Asen Summit.
But Gloria called it off, allegedly due to the storm.
It looks like it was another kind of storm which prompted the President to skip the Asean Summit.
Talking about politics, Jose De Venecia is falling to his own trap.
Senators have rebuffed De Venecia's challenge to pass a resolution calling for a constitutional convention.
The good Speaker had threatened to continue with the constituent assembly if the Senate does not heed his challenge.
Well, he will have to make good his threats.
Go ahead Joe. Continue with your charade.
It's your move now.

Saturday, December 09, 2006

Speaker's bluff

In a press conference this morning, the Speaker of the House of Representatives, Jose De Venecia posed a challenge to the Senate to pass a resolution within 72 hours calling for a constitutional convention to pursue constitutional reform.
De Venecia hurled a condition, that if the Senate fails to pass such resolution, then the House will continue with their efforts to convene a constituent assembly all by themselves.
De Venecia is, by his own admission, turning the tables, on the Senate.
For me, this is all pure bluff.
The Senate should reject such foolish challenge by the Speaker.
First, The Senate is not under the dictates of the House.
Second, the Senate is an entirely separate constitutional component of Congress.
Third, the Senate sets its own agenda and should not be working on timetables and deadlines posed by a congressman whose mandate is only one district of one province. The Senate and its members have the mandate of the entire nation.
Fourth, it is too late for that resolution suggested by the Speaker as the Congress is due to go on Christmas recess.
Fifth, there is a need to debate that challenge of the Speaker, if at all the Seante will even listen and take on his challenge, to pass a resolution within 72 hours.
Sixth, assuming that a resolution is put on the Senate floor, it should go under the normal, legal process which is to refer the same to the committee on constitutional reforms, so that public hearings can be conducted and the people can be heard in these public hearings.
If I were to make an unsolicited advice to the Senate, they should reject this challenge by the Speaker which is bordering on desperatness and stupidity.
Let the House continue with their harebrained and unconstitutional undertakings to convene a constituent assembly, so they will face the wrath of the people.
Let the peoples' protests continue. After all, the House is not abandoning the constituent assembly mode.
The Speakers challenge today is all but an empty bluff.

A Preview of parliament

What is happening now in the House of Representatives is really a preview of what a Philippine parliament would be.
What we are seeing now in the lower house of Congress is a manifestation of the tyranny of numbers.
The majority in the House is ramming through like an express train their evil intention of changing the Constitution the unconstitutional way.
They seek to covene themwelves as a constituent assembly, even without the participation of the other component, the Senate.
Leading this immoral and illegal charge is the ambitious Speaker of the House, Jose De Venecia whose insatiable desire to be prime minister is unparalleled.
He wants to be prime minister because he can never become president.
De Venecia goes down in history as the presidential candidate who was resoundedly defeated by the winning rival, Joseph Estrada.
That is how unpopular De Venecia is, among Filipinos.
De Venecia is the best argument against a parliamentary system.
Even if their actions are absolutely devoid of logic, reason, and legality, De Venecia and his puppies still pursue it, for the sole reason that they have the numbers.
If their own rules pose a hindrance to their goals, they change it midstream.
They make proposals to change the constitution, yet the congressmen are the primary, beneficiaries of such act.
Shame.
Do we really need a parliamentary system?


Tuesday, December 05, 2006

Garapalan sa Lower House

For lack of better word, garapalan na sa House of Representatives.
As I am watching the television, the desperate crocodiles in the House of Representatives are bent on convening themselves as a constituent assembly in order to change the Constitution.
First, they are now going to delete a House rule which requires that asoption of resolutions propsoing amendements or revision of the constittions should be mande in the same manner as the enactment of bills.
If the Hosue succeeds tonight in deleting this rule, they will just file asimple resolution conveninga constituent assembly, with or without Senate participation.
If the Senators will not participate, trhe House will just convene by themselves.
The Senate expectedly will seek to restrain this unilateral "express-lane" act of the House.
I am appalled at this sight, as congressmen are hell bent in their dastardly act, for self-interest, and nothing more.
There is nothing in this exercise that will benefit the Filipinos except the congressmen themselves.
For one, it will extend their expiring terms.
Second it will erode their term limits and will run anew as members of a new parliament.
This greediness, selfishness--this evil---should be stopped.

Monday, December 04, 2006

Ella and Marnie

My first cousin Ingrid Pamela Dejaresco Araneta, in her twenties, will tie the knot on December 16 2006 a Saturday. We call her "Ella", short for Pamela. Her friends call her Ingrid.
She weds her boyfriend of more than five years, Marnie Calubaquib.
Anyway, Marnie and Ella hooked up when they were still in college at the University of the Philippines Diliman.
Both are currently working in Singapore.
Marnie is in Information Technology, while Ella, being a topnotch architecture graduate from UP (top of her class magna cum laude), works for a company in Singapore.
We stayed in their apartment when we visited Singapore early this year.
Ella is the eldest daughter of my father's younger sister Charito (Tita Ito) and Antonio Araneta (Tito Tony).
The family is based in Cebu. Ella's sister is Kristine "Ating" who is incidentally here in Manila right now.
She has two younger brothers, Dex, and Kyle.
Marnie hails from Tuguegarao.
We chose to give a simple gift for Ella and Marnie on their wedding.
Since she sent through yahoo photos, an album of their ante-nuptial pictorials, we took the opportunity to have one of the pictures drawn by charcoal.
I am posting the scanned charcoal portrait of the two, plus the black and white photo that I printed on my computer.
We are of course attending the wedding in Cebu, since our son Joshua is part of the entourage.
So we are going back to the province earlier.




Sunday, December 03, 2006

Rodolfo Vasquez v Court of Appeals

The 1964 ruling in New York Times v. Sullivan handed down by the United States Supreme Court has been the barometer used in defamation cases involving public officials in both jurisdictions.
The Philippine case that comes comparably close in circumnstances with that of the New York Times ruling is that of Rodolfo Vasquez versus Court of Appeals.
It is similar to the New York Times v. Sullivan ruling in the sense that the plaintiff is also a public official (a barangay official).
When the barangay official sued for criminal libel (note: New York Times case was a civil case), the Supreme Court ruled that it was incumbent upon the prosecution to prove actual malice, and failing such, no liability attached against the accused.
In any event, the Supreme Court took ocassion to apply the New York Times Co. v. Sullivan standard in this case.

Here is the digest of that case:

Rodolfo R. Vasquez v. Court of Appeals
G.R. No. 118971
September 15, 1999

Facts:
Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore Area. Sometime in April 1986, he and some 37 families from the area went to see then National Housing Authority (NHA) General Manager Lito Atienza regarding their complaint against their Barangay Chairman, Jaime Olmedo, a public official. After their meeting with Atienza and other NHA officials, petitioner and his companions were met and interviewed by newspaper reporters at the NHA compound concerning their complaint. The next day, April 22, 1986, the following exerpts of the news article appeared in the newspaper Ang Tinig ng Masa. In the article, pulished were supposed allegations by Vasquez that (1) “nakipagsabwatan umano si Chairman Jaime Olmedo upang makamkam ang may 14 na lote ng lupa”; (2) ang mga lupa ay ilegal na patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA; (3) kasangkot din umano si Olmedo sa mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok. x x x”
Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that the latter’s statements cast aspersions on him and damaged his reputation.
On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel and sentencing him to pay a fine of P1,000.00. On appeal, the Court of Appeals affirmed in toto. Hence, this petition for review.

Issue:
Whether or not the atual malice standard in New York Times versus Sullivan is to be applied in prosecutions for criminal libel.

Held:
The standard of actual malice in New York Times versus Sullivan is to be applied in criminal prosecutions for libel.
For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not.
A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression.

Libel was used as a form of harassment:

Instead of the claim that petitioner was politically motivated in making the charges against complainant, it would appear that complainant filed this case to harass petitioner.
It is curious that the ones most obviously responsible for the publication of the allegedly offensive news report, namely, the editorial staff and the periodical itself, were not at all impleaded. The charge was leveled against the petitioner and, "curiouser" still, his clients who have nothing to do with the editorial policies of the newspaper.

Saturday, December 02, 2006

Tasting Krispy Kreme at The Fort

We lined up today at the first Philippine branch of Krispy Kreme at Fort Bonifacio in Taguig.
Still the line was long, as eager patrons longed to get a taste of America's most successful doughnut store.
It took us at least twenty minutes of waiting before we were able to get our two promo boxes of Krispy Kreme products.
I also got to taste for the first time their coffee, although I am not a coffee drinker.
There were free doughnuts available for tasting while waiting for our turn.
Ating, our cousin joined us in buying Krispy Kreme.
Their inaugural promo is selling two boxes of doughnuts, each box containing a dozen pieces.
One box contains a single flavor, the original glaced, while the other box contains all of the various flavors of Krispy Kreme doughnuts.
The two boxes are sold at P550.
Each doughnut is sold for P30. BUt it comes cheaper if the doughnuts are bout in boxes.
Krispy Kreme lives up to expectations. It is so soft and the sugar coating just melts in your mouth.
Krispy Kreme at the Fort is just the first of many branches soon to open in various outlets and malls in Metro Mnaila.
The franchise holder for the Philppines is the group that runs the Max chicken chain of restaurants.
I thought it was only in the United States where the euipment that processes the doughtnut are shown to the customers.
The set up was all the same at the Fort. You can see the doughnut maker process the dought from start to finish, giving the impression that you really get the doughnuts freshly cooked.

Philadelphia Newspapers Inc v Hepps

Another significant decision handed down by the United States was Philadelphia Newspapers Inc.v Hepps.
The Supreme Court made it clear that a lesser standard is demanded for private individual plainitffs suing for defamation cases involving matters of public concern.
Private individual plaintiffs need to establish only falsity, and not actual malice i.e. knowledge of falsity or reckless disregard of the truth.

Here is the digest of that case I made:

Where a newspaper publishes matters of public concern, a private figure plaintiff cannot recover without showing the statements at issue are false.

Philippine Newspapers Inc versus Maurice Hepps
475 US 767 (1986)

Facts:
Maurice Hepps is the principal stockholder of a corporation that franchises a chain of stores --- selling beer softdrinks, and snacks--- called “Thirfty Stores.” Hepps and a number of franchisees are the appellees. The Philadelphia Newspapers, Inc. owns the Philadelphia Inquirer. The Inquirer published a series of articles alleging that appellees had links to organized crime and used some of those links to influence the States governmental process. The nature of these articles was exemplified in one headline which read: “How Mazzei Used Pull, Kept Beer Chain Intact.” The articles purported to link Maurice Hepps, General Programming Inc., and a number of independent corporate entities who operated beer and beverage distributorships as franchisees of General Programming, Inc. to certain ‘underworld’ figures and to organized crime.
The article published by the Philadelphia Inquirer, referred to Senator Mazzei whose actions displayed a pattern of interference in state government by the legislator on behalf of Hepps and Thrifty. The articles reported that federal investigators has found connection between Thrifty and the underworld.
Hepps then brought defamation suit against the newspaper owner and authors of the articles. The state Supreme Court ruled in favfor of Hepps, and the Philadelphia Inquirer elevated to the Supreme Court.

Issue:
What is the standard used in defamation cases initiated by private persons involving publications that deal with public interest?

Held:
Falsity Standard. The rule laid down by the Supreme Court is that at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.
It should be the plaintiff who shall “bear the burden of showing falsity, as well as fault, before he could recover damages.”
Common law principle a defamatory speech is presumed to be false and that the one who uttered injurious statements bears the burden of proving the truth (because victims are presumed innocent) has collapsed because it is now the victim who must prove falsity of the statements.
The Supreme court said that if the burden of proving truth is placed on the defendant who utters speech of public concern, free speech is deterred and a there will be a chilling effect. To avoid this chilling effect, the private person must bear the burden of proving falsity.

Thursday, November 30, 2006

Krispy Kreme opens in Manila

Krispy Kreme, one of the hottest selling doough nuts in the United States opened its first ever branch in the Philippines today at the Fort area in Taguig today.
Krispy Kreme's entry was welcomed warmly by Metro Manila customers as thousands lined up in order to be among the first to taste the different varieties of Krispy Kreme products.
I first got to taste Krispy Kreme in Los Angeles years ago, when it was also a hot item at that time.
The Krispy Kreme store in L.A. designed their store in a way that customers see the process of cooking the dough nuts.
I haven't been to the local Krispy Kreme here but I expect the set up to be the same.
It was a high profile opening, appearing in various media like television news and newspapers.
I first heard of the opening through flyers distributed in offices in Makati, in full crisp color.
I do not know when we will be able to visit Krispy Kreme at the Fort, but we will wait until the euphoria subsides.
I remember their dough nuts to be laced with powdery sugar, and it comes in different flavors.
Krispy Kreme also adopted a unique advertising strategy, which is mainly by word of mouth.
And the endorements were a mouthful.








Wednesday, November 29, 2006

Our Dumaguete Law Office inaugurated


Last November 23, 2006, our spanking new law office was inaugurated in simple rites in Dumaguete City.
My law partners are Richard Ricky Chiu and Mihail Mik Maxino.
Ricky topped the bar in 1986. While Mik is an eleventh placer in the bar.
The law office is located at the penthouse of Plaza Maria Luisa along V. Locsin Street Dumaguete City.
It is a tiny little office but serves the purposes of entertaining clients, with space for a miniconference and tables for staff and associates.
Present during the inauguration were the parents of the law partners.
It was agreed that mothers of the partners would cut the ribbon.
Unfortunately, my mother was hospitalized that day, so my wife Ruby had to pinch hit.
Guests were present clients and friends and relatives.
We had a simple get together snack after the simple rites.
Pastor Proceso Udarbe, former Silliman University Pastor and Fr. Eking Balongag blessed the law office.
I arrived ten minutes late for the inauguration of my own office.
I was coming from Cebu as I had a hearing in the morning.
I took the Ceres bus to Liloan at 11:30 a.m. It arrived at a little after 2:00 in Liloan.
We had to wait for the fast craft which left Liloan to Sibulan at 3:00 p.m.
I was fetched at the Sibulan wharf and we proceeded to Piapi.
I made a quick bath and immediately proceeded to the inauguration.
.



Guns in court

I was in Cebu this morning to attend a hearing of one of the cases I am handling there.
What otherwise was another ordinary, boring court session for me turned colorful and interesting when one case called to testify a police officer who confiscated hot guns in Cebu City.
It was a criminal case of illegal possession of firearms.
During the hearing today, so many weapons were presented like Uzi machine gun, 38 caliber revolver, 45 caliber guns, among others.
I was a spectator to the proceedings, as our cases was yet to be called.
It gave me interest because of the variety of guns that were presented in court.
Fellow lawyers who were present were cautious, asking whether the guns were secured, and that there was no danger of the guns indiscriminately firing.
The guns looked rusty already, perhaps due to the long period that it was under custody of the authorities after having been confiscated.

This is not to criticize the presentation of this prosecution evidence, but I really think it was a funny sight to see these guns brought into the court room inside a grocery bag.
I felt it was funny.
I thought it should even have elicited a comment from the defense counsel for from the court.
What is that? Grocery stuff?
There was also no objection on the ground of "no basis".
It was immedately assumed that these were the guns confiscated from the raid.
It was not known to whom the guns were turned over after the confiscation.
It may have already been tainted evidence. These may not be the same guns.
Worse, the policeman witness kept on mumbling as if he wasn't sure of his answer.
Anyway I was enjoying the proceedings, taking a good look at the guns, taking pictures.







Negros Oriental governor is most outstanding

Congratulations to Negros Oriental Governor George Arnaiz for having been awarded as this year's most outstanding governor by the pretigious annual Local Government Leadership Awards (LGLA).
The local government leadarship awards, is a pet project of Senator Aquilino Q. Pimentel Jr., himself a former local official as mayor of Cagayan de Oro City in the 1980's.
The LGLA aims to recognize the innovative undertakings of local government officials which make an impact in improving the welfare of their respective constituencies.
Governor Arnaiz, who is now in his third and last term has been finally recognized for his efforts in improving the lives of Oriental Negrenses.
Below is the press statement from the office of Senator Pimentel:

MOST OUTSTANDING GOVERNOR, CITY AND MUNICIPAL MAYORS CHOSEN

The winners of the 2006 Local Government LeadershipAwards (LGLA) were honored today at the awardingceremonies held at the Senate building in Pasay City.
The principal winners are Negros Oriental Governor George P. Arnaiz, most outstanding provincialgovernor; Surigao City Mayor Alfonso Casurra, mostoutstanding city mayor; and Mayor Jupiter C. Dominguezof Sabangan, Mountain Province, most outstandingmunicipal mayor.
Senate President Manuel Villar, Jr. and Sen. AquilinoQ. Pimentel, Jr. the moving force behind the LGLA,conferred the awards on the winners during simplerites held at the Sen. Ambrosio Padilla Room.
Gov. Arnaiz was chosen most outstanding governor forspearheading the Negros Island Sustainable Agricultureand Rural Development Program, a joint undertaking ofNegros Oriental and Negros Occidental. He madepossible the construction of facilities needed for theeconomic and social advancement of the province likethe Drug Treatment and Rehabilitation Center, thethree-storey provincial hospital administrationbuilding, the Perdices Memorial Coliseum Complex andthe 1,000-seater provincial convention center.
Mayor Casurra emerged as most outstanding city mayorin recognition of his efforts in making Surigao Citythe most competitive city in the country under theSmall Cities Category in terms of cost of doingbusiness. The peaceful co-existence among thedifferent peoples and the close collaboration with thepolice and community has catapulted Surigao City into the one of the Rotary International’s 50 Peace Citiesin the world since 2003.
Mayor Jupiter Dominguez won as most outstandingmunicipal mayor because of his inspiring leadership byinstilling the people of Sabangan town with the spiritof hard work, dedication and commitment to excelamidst trials while preserving the unique indigenousculture and practices.
Also awarded were Outstanding Local Chief Executivesin various categories:
Outstanding governors: Gov. Erico Aumentado of Boholand Gov. Vicente Bermejo of Capiz.Outstanding City Mayors: Mayor Santiago Barcelona ofEscalante City and Mayor Florencio Bernabe ofParaƱaque City.Outstanding Municipal Mayors: Ronald Allan Cesante,Dalaguete Cebu; Maximo Estela, Sto. Tomas, Davao delNorte; Jeorge (E.R.) Ejercito Estregan, Pagsanjan,Laguna; Luis Ferrer, General Trias, Cavite; AlfonsoGamboa, Enrique Magalona, Negros Occidental.

Monday, November 20, 2006

Die hard Morales fan writes

So much has been written about the sensational November 18 2006 "Grand Finale" between Filipino Manny Pacquiao and Mexican Erik Morales.
Many of the articles about the epic battle have flowed out on the internet ("internets" according to a war-freak leader).
But the one that tops is that written by an emotionally struck die-hard Erik Morales fan named James MacDonald posted at saddoboxing. The title aptly describes it: The End of an Era.
This one's a good read.

Pacquiao writes off Morales

It was an epic battle that spelled the end of an era.
Manny Pacuiqao in a fashion as quick as his fists clobbered Mexican legend Erik "El Terrible" Morales before the end of three rounds.
Pacquiao a southpaw, this time introduced his killer right hook in this fight, which rendered Morales shocked everytime it landed on his face.
Manny Pacquiao moved in and out of Morales, preventing the Mexican champ from unleashing right-arm arsenal.
It was a highly improved Pacquiao in this third fight, with so many new movements that complemented his speed and punching power.
We watched the live in National Sports Grill at the Greenbelt III.
The rowdy Filipino crowd was estatic at each time Manny Pacquiao landed a solid punch to the opponent.
With his vicotry Manny Pacquiao is now both a fierce and feared fighter that will scare the hell of those Mexican pugs.
Morales was right. Pacquiao was just too strong and too fast for him.
I am watching the replay ofthe fight as I am writing this and I just saw Morales pummelled backwards and down to the canvass on his third and final knockdown.
It was a trilogy of a knockdowns.
Morales was knocked down thrice, from clear killer punches from Pacquiao, enough to make Morales shake his head and signal "no more" before millions of viewers around the world.
Congulations Manny Pacquiao!


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Saturday, November 18, 2006

Gertz v Welch

Gertz vs. Robert Welch, Inc.
418 U.S. 323
November 25, 1974

Facts:

In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted the policeman Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney (Gertz argued against the death penalty for Jack Ruby, the killer of JFK assasin Lee Harvey Oswald), to represent them in civil litigation against Nuccio.
Respondent Robert Welch, Inc. (named after Robert Welch) publishes American Opinion (the magazine has been merged and is now known as The New American), a monthly outlet for the views of the John Birch Society. Early in the 1960's the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship.
In March 1969 respondent published the resulting article under the title "FRAME-UP: Richard Nuccio And The War On Police." The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police.
In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's inquest into the boy's death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the "frame-up." According to the article, the police file on petitioner took "a big, Irish cop to lift." The article stated that petitioner had been an official of the "Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government." It labeled Gertz a "Leninist" and a "Communist-fronter." It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that "probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention."
These statements contained serious inaccuracies.
The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a "Leninist" or a "Communist-fronter." And he had never been a member of the "Marxist League for Industrial Democracy" or the "Intercollegiate Socialist Society."
The article in the magazine alleged that Nuccio's murder trial was part of a Communist conspiracy to discredit the local police, and it falsely stated that petitioner had arranged Nuccio's "frame-up," implied that petitioner had a criminal record, and labeled him a "Communist-fronter."
Petitioner filed a diversity action for libel agasint respondent in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. After the jury returned a verdict for petitioner, the District Court decided that the standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, which bars media liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, should apply to this suit. The court concluded that that standard protects media discussion of a public issue without regard to whether the person defamed is a public official as in New York Times Co. v. Sullivan, supra, or a public figure, as in Curtis Publishing Co. v. Butts, 388 U.S. 130. The court found that petitioner had failed to prove knowledge of falsity or reckless disregard for the truth and therefore entered judgment n. o. v. for respondent. The Court of Appeals affirmed. Held:

Issues:

Whether or not a publisher or broadcasater of defamatory falsehoods can claim the actual malice protection in defamation suits involving private individuals.

What is a private individual?

Held:
No.

1. A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest.

. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable.

(a) Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating injury to the reputation of private individuals is therefore greater than for public officials and public figures.
(b) To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not.
(c) So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent.
2. The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. Pp. 348-350.
3. Petitioner was neither a public official nor a public figure. Pp. 351-352.
(a) Neither petitioner's past service on certain city committees nor his appearance as an attorney at the coroner's inquest into the death of the murder victim made him a public official.
(b) Petitioner was also not a public figure. Absent clear evidence of general fame or notoriety in the community and pervasive involvement in ordering the affairs of society, an individual should not be deemed a public figure for all aspects of his life. Rather, the public-figure question should be determined by reference to the individual's participation in the particular controversy giving rise to the defamation. Petitioner's role in the Nuccio affair did not make him a public figure.

Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. We endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation

A different standard in Gertz v Welch

There was a new twist in the series of rulings handed down by the United States Supreme Court since the promulgation of New York Times Co. v. L.B. Sullivan ruling in 1964.
In the chronology of decisions, the prevailing doctrine then was the rule in Rosenbloom v. Metromedia Inc. which laid down what I would describe as the "public interest" test.
In Rosembloom the United States Supreme Court ruled that the actual malice standard applies if the publication that contained defamatory falsehoods was one of public interest.
Here the "status-of-the-plaintiff" standard was sent to the back burner.
Remember, in Rosembloom v Metromedia Inc. the Supreme Court said: "If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved".
The Supreme Court iin Rosembloom continued: "Whether the person involved is a famous large-scale magazine distributor or a "private" businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous."
This ruling did not sit well with many quarters, including the Supreme Court.
That is why the ruling in Gertz v Welch (1974) becomes very significant. It laid down a different standard in deciding defamation cases when the case involves private individuals (those who are not public officials nor public figures)
In short, the Gertz ruling, the Supreme Court required a less demanding standard for plaintiffs who are private indivudals, in order to vindicate injury to reputation resulting from defamatory falsehoods.
I think it is fair to say that the Gertz ruling discarded the ever-expansive standard in Rosembloom v Metromedia Inc.
The Gertz v. Welch ruling is signifcant to Philippine law, because it allows a comparison as to how Philippine jurisprudence has dealt with defamation cases.
The Gertz decision also is quite instructive because it provides a graphic description of who a private individual is (in contrast to a public figure), in defamation cases.
Does Philippine jurisprudence follow the discarded Rosembloom (public interest) doctrine? Or does Philippine jurisprudence follow the Gertz standard?
This will be answer when we start comparing Philippine defamation cases with their American counterparts.
I will be posting my digest of the 1974 Elmer Gertz v. Robert Welch ruling subsequent to this.

Thursday, November 16, 2006

More "live" feeds of Pacquiao-Morales brawl

I am delighted to learn that more establishemnts, not just the movie houses, are offering live telecasts of the Pacquiao-Morales bout on Sunday November 18, 2006.
I have never seen a Pacquiao fight live. It had always been on delayed telecast on Skycable.
Then the movie houses offered to show live sattelite feeds of the Pacquiao bouts at exhorbitant fees. Nonetheless, the tickets sold like hotcakes.
But in this third Pacuiqao-Morales fight in Las Vegas, restaurants and food outfits will also be setting up big screens and will show "live" the fight to their customers.
This is a welcome development for me. This time I will be watching the fight "live".
Movie houses charge from P500 to P700 for a seat to the "live" bout.
The restaurants, like national sp;orts Grill and Fish Company are now joining the "live" feeds, also for a fee.
They are offering between P400 per head, P200 worth of which is "consumable".
It's a better deal, since you eat and drink while watching the fight.
Trouble is, its on a first-come-first-serve basis so we will have to be early so we can choose the best seats or tables.
Menwhile, in Manila, the Pacquiao-Morales fight will be shown for free to Manilenos. The local government there has apparently sponsored this activity so the common can also watch the fight live.
Anyway, while the entire nation will be on a virtual standstill on Sunday morning, business will be brisk as ever. That's courtesy of Manny Pacquiao who has opened a new window for business opportunities to a lot of establishments.

Wednesday, November 15, 2006

Accused journalist posts bail

My heart sank this morning seeing a visibly nervous journalist posting bail for her temporary liberty at the Manila Regional Trial Court.
The journalist is one of those accused of libel, a criminal offense, by First Gentleman Mike Arroyo.
I was running late for my hearing at the old ombudsman building near the Manila City hall this morning.
I parked at the SM mall nearby.
While on my way I met Jason, my law school classmate, who apparently did not know where he was headed.
I took time to greet him, and asked him where he was headed.
He asked where the ombudsman building is.
I told him that was where I was headed, so he tagged along.
I asked him what his hearing was.
He said he will accompany his client who was to post bail.
Upon arrival at the building, we split as I was already late for my own hearing.
After my hearing I noticed a number of media persons loitering at the second floor.
The nosy journalist in me asked one of them what the story was.
One of them, a reporter of ABS CBN, said that a reporter Mia (or was it Mimi) Gonzales of the Daily Mirror was arriving to post bail.
I got curious and stuck around.
Later emerged Jason, my classmate and his client, the Daily Mirror reporter.
A group of reporters were close behind them.
The reporter was visibly nervous. It was apparently her first time as an accused.
I told my self, these libel cases filed against journalists are getting ridiculous.
The reporter was most likely just doing her job.
She was accused of a criminal offense, and had to under go a criminal process, just like any one else accused of any crime.
Journalism is perhaps one of the very few professions were one can be accused of a crime for merely doing one's job.
But as they say, its part of the territory.
It is really time to undertake a re-thinking of our penal libel laws in orer to accord explicit protection to member sof the working press.





Tuesday, November 14, 2006

Mute bill

What irritated me today was having taken possession of a five hundred peso bill that was partly torn on the lower right portion.
I took hold of the P500 bill from an ATM machine.
When I tried to negotiate the bill, nobody wanted to receive it.
Some bank tellers describe this bill as "mute" bills, meaning mutilated bills.
It is perfectly negotiable, but others wouldn't want to receive it as legal tender.
This gave me a lot of hassle as I didn't notice it when it was spewed out of the ATM machine.
The solution, according to people, is for me to exchange it with any bank.
Imagine, I would have to go to a bank to have it changed.
When I inquired with a bank, they said the mute bill was perfectly negotiable.
They said as long as the bill's serial numbers are intact, it can be negoaited as legal tender.
The serial number is that found on the left portion (V925160).



Sunday, November 12, 2006

Extrajudicial killings

Extrajudicial killings are not uncommon in the Philippines.
In Dumaguete City, they have gone unabated. The authorities there are helpless.
Let me link here another incident of extrajudicial killing.
Remember the infamous shootout/rubout in Ortigas last year (November 6 2005) involving the Traffic Management Group and some young scions of Valleverde who were tagged as carjackers?
It's been a year and the recommendations of the Commission on Human Rights for the filing of murder charges against the TMD personnel are still at the Ombudsman's files.
If you want to see the video of the incident that was recorded by the UNTV, go to this link:
www.clearfx.blogspot.com
See the hair-raising manner policemen conduct their operations in the Philippines.

Friday, November 10, 2006

The Lost Horizon

While on our way to Balicasag in Panglao island, we found a place at the tip of Panglao island.
The place was called "The Lost Horizon," a cozy hotel by the beach at Alona.
It has a restaurant that serves italian food like spaghetti and pizza.
We had lunch and we discovered the other dishes they offered were delicious, like the kinilaw.
The Lost Horizon Hotel can be found at the place that serves as a jump off point for Balicasag.
That is why the beach is filled with motor bancas for rent, ready to take passengers to Balicasag island for a price of P1,600 return.
The Lost Horizon offers afforable accomodations.

There are rooms that are a bit expensive but, a group can avail of rooms as low as P1,600 par day.
This is good for group transients because the of the common toilet and showers.
But the private de luxe rooms can also go as high as P2,500 per night.
There is also a mini-bar where different kinds of drinks are available.
The rooms are with hot and cold shower, Dream cable t.v. It is a WiFi zone, serves western and asian cuisine.
There is a massage area. The massage bed directly faces the beach. While being massaged, one can enjoy the cool whispering breeze.
The area is frequented by foreigners who visit the place to dive, either scuba or snorkeling.
There are dive shops nearby, where all diving gears are available for rent.
It is easy to come to this place. From the airport there are different modes of transport i.e. tricycle, rent-a-vans, and taxis.
I asked a tricycle driver about the rates and he said that from the airport to the Lost horizon, the charge is P250.
Taxi fare, of course is more expensive.




Wednesday, November 08, 2006

DZRJ on a roll

Honestly, I was pleseantly surprised to learn that DZJR-FM 100.3, the flagship station of Rajah Broadcasating Network Inc. landed in the top five most listened-to FM stations in Metro Manila for 2006.
More surprisingly, it was the top adult contemporary FM station, as the other FM stations in the top five were more of mass-based FM stations, beating each other out for a slice of the "masa" listeners ("Jolog stations" as one RJ executive described).
RJ caters to the baby boomers, the older generation of FM music listeners, mainly the decision-makers.
It's current tag is "the greatest and the latest", but in reality their playlist focuses on the "oldest" songs.
I am fond of oldies so I am an avid RJ100 fan, just like my friend John Lee.
John Lee lives in a remote town in Zamboangga del Norte called Liloy and there is no internet connectivity there.
I urged him to purchase a laptop and get SMART We roam so he can tune to his favorite station DZRJ.
He obliged, and he never regretted the P50,000 investment, just to be able to hook up with RJ100.
RJ100 I notice has boosted its improved music program and has been aggressive in markerting and promoting its station and selling media air space.
I thought before, DZRJ was too much of rock and roll, perhaps taking cue from its captain of the airwaves RJ Jacinto, who is one of the country's foremost band players.
By the way, RJ Jacinto and his radio will always be part of Philippine history as it was his AM station that remained on the air at the height of the 1986 people power revolution at EDSA, which became the mouthpiece of the unstoppable anti-Marcos civilian and "rebel" forces who flocked at EDSA on that fatefull days of February 1986.
I don't know much about RJ Jacinto having met him only once in a radio booth in the province when he ran for senator. But I see him as the human definition of "passion". He has passion for broadcast.
Goiong back to radyo bandido, the Marcos soldiers couldn't locate RJ's station because it changed the frequency it operated on, thus, nobody in the government or military then can identify or locate the renegade station.
It was June Kiethley who anchored this rebel station calling it self "Radyo Bandido" dishing out information helpful to the rebels and the people at EDSA who were hungry for information at that time.
Anyway, DZRJ-AM is still on the air taking on much lesser politics, but always ready for the next political upheaval.
I met and discussed some radio matters with one of DZRJ's executives Bong Banez.
I was just controlling myself and stopped short of telling him how much I missed radio.
I hope and pray something will come out that would give a dose of relief to this longing for "radio activity".

Tuesday, November 07, 2006

Spouse consent required to sale of conjugal property

Query:
Is the written consent of one spouse required to dispose or encumber conjugal/common property?

There should be no dispute that either spouse cannot alienate or dispose of conjugal property without the written consent of the other.
The codal reference to this is the second paragraph of Article 96 and 124 of the Family Code which states:
“In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse my assume the sole powers of administration. These powers however do not include the powers of disposition or encumbrance without the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void.”
The Supreme Court has ruled that the authority of the court allowing one spouse to dispose or encumber any common property may be sought only if the other spouse is incapacitated.
The Supreme Court in Thelma a. Jader-Manalo vs. Norma Fernandez C. Camaisa and Edilberto Camaisa [G.R. No. 147978. January 23, 2002] referred to the comment of civil law expert Arturo Tolentino who in his book said that "As a result of this joint ownership, neither spouse may alienate or encumber any common property without the written consent of the other, or, if the other spouse is incapacitated, authorization of the court."
If the other spouse is not incapacitated, his or her written consent to the disposition or encumbrance is indispensable, subject of course to certain exceptions.
Are there instances where the disposal by one spouse of conjugal property without the written consent of the other may be valid?
Yes.
In Estela Costuna versus Laureana Domondon, [G.R. 82753 December 19, 1989], the Supreme Court allowed the husband to sell his ½ share of the conjugal property even without the consent of the wife because the wife unjustifiably withheld her consent to the sale.
This case tells us that one spouse cannot even sell his own ½ share without the consent of the other spouse, save only when the refusal to consent was unjustifiable.
In this case, the wife refused to give her consent to the sale of conjugal land even if the proceeds of the sale were to be used for the sick husband’s hospital expenses.
The Court said the wife was greedy because previously, the husband had executed a will naming her as the sole heir.
Naturally, the wife greedily refused to consent to the sale because she wanted the whole conjugal property intact to herself.