Tuesday, January 31, 2006

What surname can an illegitimate child use?

Now, it is possible for illegitimate children to use the surname of their father.
Thanks to a new law enacted in 2004, Republic Act No. 9255 entitled "An Act allowing illegitimate children to use the surname of their father, amending for the purpose Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines."
Presently worded, Article 176 of the Family Code states:
"Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly reconized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private written instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of the legitimate child.
The law brings relief for so many illegitimate children, who were once limited by to bear only the family of their mother.
There are so many births by mothers who chose not to marry, for one reason or another.
Many times, the father did not really object to having his family name used even if he is not married to the mother. But the law mandated then that the illegitimate child use only the surname of the mother.
Worse, in the birth certificate of the illegitimate child, in the space reserved for "Name of father" what is placed is "Unknown" even if the father is known and recognizes his child.
Requiring the birth certificate to contain an "unknown" entry is slanderous, and blackens the reputation of the mother. It suggests that the mother was engaged in an orgy when the child was conceived.
So, today, upon the birth of the illegitimate child, if the father reconizes the child as his, the birth certifiate will no longer contain the word "unknown" in the space reserved for the father's name.
Moreover, even if the father recognizes his illegitimate child years after the child's birth, the father can execute an affidavit admitting that he is the father of the child, or in a private handwritten document.

Monday, January 30, 2006

Shield Law I: The Elements

What are the elements of our Shield Law?
First, what does the law protect? The shield law protects agasint compelled revelations. Compelled disclosures are usually done via a subpoena upon a newsmen. Subpoena always has a compelling feature because non-compliance or defiance would warrant sanctions, including jail-time, as what had happened lately to American news reporter Judy Miller.
The law says a newsman CANNOT BE COMPELLED TO REVEAL the source of any news report or information....
Therefore, if a newsman is merely requested by a lawyer in a case to testify about an information obtained in confidence, and the newsman voluntarily testifies in court, the shield law does not come into play.
Who are the persons covered by teh shield law? As the law says, they are the PUBLISHER, EDITOR, COLUMNIST and DULY ACCREDITED REPORTER.
This element is a bit controversial because the the persons covered are specific. Who is a "duly accredited reporter"? Accredited by whom? The local press club? the national press club? What about freelance reporters, are they covered too?
What is the subject which cannot be forcibly revealed? The law says what cannot be subject of compelled revelation is the SOURCE OF OF A NEWS REPORT OR INFORMATION.
The law also specifically requires that the news report MUST HAVE APPEARED, meaning, it must have been published.
It would seem that the shield law does not protect against forced revelations of unpublished materials, notes of reporters, their journals.
What kind of publication does the shield law protect? The law protects NEWSPAPERS, MAGAZINES and PERIODICALs. Moreover, these publications must be of GENERAL CIRCULATION.
This law was was enacted in the 1950's so it did not cover broadcast like t.v. and radio news, much less news postings in the internet.
So can radio and television newsmen be compelled to testify and reveal the source of their information?
Finally, it should be emphasized that we do not have an absolute shield law.
The law says that if the revelation is demanded by the SECURITY OF THE STATE, then the courts, ath House or committee of the Congress can compell such revelation.
As we can see, the law has its deficiencies or inadequacies, and needs to be updated because so many things have happened since its enactment in 1956.
Frankly, it is surprising that we have not heard of the press pushing for the amendment of our shield law.

The Philippine Shield Law

Yes, the Philippines has a shield law for journalists.
It is embodied in Republic Act No. 1477, an amendatory law.
But the first shield law was enacted in 1946, Republic Act No. 53.
A "shield law" is a law designed to shield journalists from being forced to reveal the sources of information they gathered or obtained in confidence.
The concept of shield law is of American origin, but later spread into Europe, and even played the role in the prosecution of war crimes.
The philosophy behind this concept is that journalists must have this kind of protection against forcible revelations, otherwise they will not be effective purveryors of truth because nobody would talk to them and give them "leads" for their stories out of fear of retribution.
I will have to discuss the shield law extensively in this blog, as I believe it has an impact in the maintenance of an independent press.
As a journalist, the shield law must be discussed among practicing members of the media.
As I see it now, there seems to be a lack of sources of information being circulated among newsmen on the importance of a shield law which has resulted to newsmen being used as unwitting tools in the prosecutorial processes.
Newsmen are supposed to be neutral.
Yet, many a times newsmen are bullied into siding with the prosecution because they are forced (via a legal process called subpoena) to dish out information beneficial to the government's prosecutorial duties, and sometimes to the prejudice of the accused. One of the basic rights of an accused is the right to a fair trial.
My stern objection is that as a newsman, I cannot allow myself to be a sidekick of the prosecution. It should not be that way.
And I believe being compelled to reveal information, particularly those I gathered or obtained in confidence, is a violation of my constitutional right to press freedom.
First, let me cite verbatim the existing shield law under Republic Act No. 1477.
Its a brief piece of legislation. But its wisdom and policy is revealed in its simplicity.
Later let us try to to dissect the law.
Republic Act No. 1477 states:



SECTION 1. Section one of Republic Act Numbered Fifty- three is amended to read as follows:

"Sec. 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State."

SECTION 2. This Act shall take effect upon its approval.
Approved: June 15, 1956
It is important also to cite the progenitor. It is clear that Republic Act No. 1477 only amends a previous law, Repoublic Actg No. 53, which states:


SECTION 1. The publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter, unless the court or a House or committee of Congress finds that such revelation is demanded by the interest of the State.

SECTION 2. All provisions of law or rules of court inconsistent with this Act are hereby repealed or modified accordingly.

SECTION 3. This Act shall take effect upon its approval.
Approved: October 5, 1946
Tomorrow, let us dis-mantle the elements, so we can see in clearer fashion, what our own shield law is all about, what protection it accords, who and what it covers, its limitations.
Till tomorrow then....

Sunday, January 29, 2006

The Lettermen sweeps Manila

Last night wife Ruby and I watched, what we would consider by far the best concert in the country.
The world-famous Lettermen performed one of their series of shows in the Philippines at the 14,000-capacity Araneta Coliseum in Cubao.
The Lettermen never lost their musical magic as they accompanied the audience in a trip down memory lane with their love songs that were familiar fixtures in music charts in the sixties.
The Lettermen is composed of the diminutive Tony Butala, the lone founder and original member of the trio song group.
The two other members who have been part of the Lettermen for the last twenty-two years were the towering Donovan Tea from Houston Texas, and Mark Preston.
I was not yet born when the Letermen soared to music stardom, but their songs have lingered even to this day.
Suprisingly, I saw a lot of young faces (like us), aside from the "young once", who were just to excited to ride along the continuous waves of romantic melodies.
The presence of middle-age fans is a testament to the enduring, everlasting and multi-generational impact of the Lettermen and theirs songs in the lives of their followers around the globe.
Who can forget songs like "Theme from Summerplace", "Warm", "The Wonder of You", and their own versions of "The Way You Look tonight", "When I Fall In Love", "Portrait of My Love", "Love Is A Many Splendored thing", "Hurt So Bad", and many more.
The evening took a deper romatinc turn when Tony Butala sang "Morning Girl". I myself have so many memories of this song.
I recall those times as a young disc-jockey in the eighties, "Morning Girl" would frequently be played right after midnight, more designed to say hello to young college co-eds who were still burning the midnight candle, preparing assignments for the next schoolday.
Everytime "Morning Girl" was aired in the stillness of midnight, it would always elicit a reaction from female radio listeners by giving the radio station a phone ring.
Always it would be a female voice at the other end, ostensibly trying to make a song request, but actually was relaying a muted query whether she was that "Morning Girl."
To me, I think "Morning Girl" was a very powerful song in the golden age of radio.
It was a song meant for radio. The lyrics say so.
It is clear the Lettermen endeared themselves to Filipinos more than other foreign artists who have performed here because they had an arsenal of Filipino love songs like "Dahil Sa Iyo", "Ikaw", "Hindi Kita Malimot".
When they rendered these Tagalog songs, injected with brief English translation, the Araneta crowd was blown to ecstacy.
At the end of the show, the Lettermen did several encore because the crowd didn't seem to have enough of their music.
This elicited a proposal from Donovan in jest, that they would render another song provided the audience would already leave the the Coliseum afterward.
Their last two songs were fittingly rendered to a nation that needed divine guidance amidst the gripping turmoils of their everyday lives.
The rendition of "I believe" and "You'll Never Walk Alone" bore subliminal messages that indeed, Filipinos need to raise their hopes, and their heads up high, if only to overcome the trials and tribulations they face whether individually or as a society.
At show's end, the audience exuded that common expression of gratitude to a group that has become part of their lives, and since then, has continued to make that same impact even with the passage of time.

Saturday, January 28, 2006

File an Answer or motion to dismiss?

Other than good English, pleading-writing requires skill. Skills in pleading-writing are as important as courtroom skills.
I'd like to touch on the initial stages of responding to civil complaints.
Under the rules of civil procedure, upon receipt of the summons, a defendant has fifteen days to respond. There are several ways to respond.
What usually happens of course is that the counsel for the defendant would ask for an additional fifteen days extension, because the "counsel has just been engaged and he needs additional time to study voluminious documents, ek ek".
After the extension, the counsel for the defendant is faced generally with two options---to file a motion to dismiss or to file an answer. (Let us not include the filing of a motion for a bill of particulars, as it has no bearing in this discussion.)
Courts discourage the filing of motions to dismiss. Even the summons indicate that as much as possible, defendants should refrain from filing motions to dismiss.
The general view is that motions to dismiss would only serve to prolong the litigation process.
In order to properly file a motion to dismiss, there must be clear grounds to file a motion to dismiss. The specific grounds for filing a motion to dismiss are found in Section 1, Rule 16 of the rules of civil procedure.
The alternative is to immediately file an Answer to the complaint.
An Answer may be filed which includes therein the grounds for a motion to dismiss. The rules allows this.
Section 6 of Rule 16 states:"If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed."
But most defense counsels, instead of immediately filing an Answer, file a motion to dismiss.
The effect--intended or unintended--of filing motion to dismiss is to delay the proceedings, since the court will have to first resolve the motion to dismiss before requring the filing of an Answer.
But the question is, as a mater of strategy, is it always beneficial for the defense to file a motion to dismiss?
Not necessarily.
Sometimes, it is better to immediatley file an Answer and include in the affirmative defenses the grounds for a motion to dismiss. Thereafter the defense can subsequently file a motion for preliminary hearing on those affirmative defenses.
Section 6, Rule 16 is a very effective strategy. When there is clear presence of a ground to file a motion dismiss, filing an Answer through Section 6, Rule 16 would be a better strategy, as opposed to filing a motion to dismiss.
Because a motion to dismiss is not a responsive pleading. An Answer is.
Once an Answer is filed, the plaintiff can no longer amend the complaint as a matter of right.
Let me give an example.
A complaint was filed, and there was an error because the plaintiff actually had no capacity to sue.
If the defense files a motion to dismiss (and not an Answer), the motion to dismiss will only serve to alert the plaintiff of his mistake.
What the plaintiff will immediately do is to file an amended complaint. At this stage filing an amended complaint is a matter of right, since no responsive pleading has yet been filed.
Bad defense strategy.
The better way for the defendant, I submit, is to file an Answer and include as part of the affirmative defenses, the ground of lack of capacity to sue (or some other ground for that matter). Then immediately move for a preliminary hearing on the affirmative defense.
This way, as defense counsel, you shackle the plainitff, as he can no longer just arbitrarily amend the complaint. For the plainitff to seek permission to amend the complaint would already be seen as an afterthought, which would be obvious to the court already.
In my earlier practice, almost automatically I would file a motion to dismiss.
But as time passed, and with numerous pleadings filed, I learned to be more circumspect in responding to complaints.
Since then, when acting as defense counsel, incorporated in my analysis on how to properly respond to complaints is the conscious appreciation of the difference between Sections 1 and 6 of Rule 16 of the rules of civil procedure.

Friday, January 27, 2006

Facing an arrest warrant

Here is one piece of advice if you are facing a criminal case: Take it seriously.
If you won't, it will spell real trouble for you.
Here is what happened two days ago.
I was doing the usual pleading work at the office when we got a call that some Makati police were in the building armed with an arrest warrant to be served upon someone working in the office.
Well, not a client of mine, and she's somebody I don't know. Gotta move on.
Too bad to be served an arrest warrant, I thought.
I then realized from the secretary, Mary Ann, that the call was made to our office because the co-employees in the department where the person to be arrested was working didn't know what to do.
At that point, they were holding off the policemen outside, in the meantime.
I guess they were trying to hide their co-worker from being arrested, and if possible, slip her out.
But the police already said they know the "subject" was inside the building because they saw her daily time record.
Ping Remollo, our head lawyer decided to discuss the matter with the policemen, so the cops went to our office and showed the arrrest warrant.
The warrant, we learend was issued by the judge when the person, who is facing a bouncing checks case, failed to attend the previous hearing.
My guess was the judge was pissed off when the accused did not show up in the hearing without any notice at all.
Out of humanitarian consdierations, since it was already past 5 p.m., we requested the cops to "defer" serving the arrest warrant until the next day so that the accused wouldn't have to spend the night in jail.
The policeman was understandably reluctant but after some discussion he agreed, on the condition that the very first thing the following morning, the accused must be brought to the Makati police station.
By the way, the Makati police has a brand new four-story building along Ayala Ave. and Yakal Streets. It is by far the most modern police station in the country. The police station can be mistaken for a commercial center.
Anyway, Ping Remollo asked me to handle the matter.
After the cops went away, we summoned the accused.
We discussed the matter, told her she's lived another day, but the following morning, she has to go to the police station to satisfy the arrest warrant.
This is not supposed to be a difficult thing. The easy solution is to bail. There's a bail amount stated in the arrest warrant.
The problem with our subject: she's got nothing. I didn't ask her, but my impression was that she's deep in debt. I noticed no one even volunteered to shoulder the bond.
If you don't pay the bond, what's the other option?
The alternative was, to ask the judge to recall the warrant. That's a tedious process.
Call it by any other name--motion to lift the warrant, motion for reconsideration, etc.--- the objective is to ask the judge to render the warrant of no force, so the subject (accused) can go free.
I prepared an urgent motion to lift the warrant of arrest to be filed the next day. It was by "special appearance" since I was filing the motion for that particular incident only.
So the following day, the accused, her spouse and I went to the Makati police station, at the fourth floor where the warrant and subpoena section is located.
First problem of the day: the policeman who served the warrant was not in the office and we had to wait.
While waiting at the police station, I already anticipated a major problem: what if the judge is absent today?
Anyway I went ahead to court, and instructed the spouse of the accused to have the police make certificate of detention. As soon as this is done, I told the spouse to rush the certifcate to court so I can attach it to the motion.
At around noon time, in the Makati court, my hunch was accurate. The judge was not there and was to report only in the afternoon.
Anyway, I served a copy of gthe motion to the prosecutor and went to the sala of the judge and talked to the clerk of court. I made a direct request.
This was an urgent motion to lift the warrant. The accused is detained. I requested if possible, the judge recall the warrant that very day! Otherwise, the accused will have to spend overnight in detention. "Maki-usap lang kay judge."
The clerk of court was accomodating and said he will imediately give the judge a call and ask her decision.
Good thing the judge was accomodating and recalled the warrant.
It was already past 3 p.m. and the accused who was technically under detention at the police station was already worried she would have to spend the night under detention.
When the recall order was released we rushed it to the police station, and before 5 p.m., the accused was free.
We undertook the longer, tedious route to have the accused released.
There is one lesson here. Do not take for granted these criminal court hearings. If you are an accused, attend the hearings. If you can't, call your lawyer beforehand. Don't piss off the judge.
The accused was very thankful. She avoided an overnight stay in jail. She dodged the bail bond.
For me, 'twas all in a day's work.

Wednesday, January 25, 2006

Can a lesbian adopt?

One of the more interesting cases I handled was that of a lesbian sought to adopt her four year old female ward.
She has been taking care of the little girl for three years already since the biological mother, a G.R.O. abandoned the child, while the father unemployed, refused to recognize the child as his.
I told the lesbian in jest, "You know what, if we file this petition, the judge might think you intend to make the little girl as your future girlfriend."
The client replied, "No. Attorney, I just want to legalize this relationship of mother and child."
So can lesbian adopt?
The answer is yes.
In adoption there is one basic guiding principle: it must always be for the best interest of the child.
So, as long as the petitioner possesses the qualifications in the law, and the court is convinced that granting the adoption is for the best interest of the child under the circumsntances, whether lesbian or not, the adoption will be granted.
First, let's be a little academic. The domestic adoption law (Republic Act No. 8552) enumerates the qualifications of those allowed to adopt:
"Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family"
Yet even if the petitioner has all these qualifications, still, the court will have to be convinced that granting the adoption will redound to the best interests ofthe child.
The problem with the situation was that the lesbian was trying to adopt a female child.
So the court was understandably suspicious.
As a matter of fact, after I presented the social worker to testify, the judge threw the first question (before the cross examination by the fiscal).
In abooming and commanding voice, the judge asked the social worker: "Did you ever consider the fact that the petitioner here is a lesbian?"
The social worker meekly answered "Yes, your honor"
The judge retorted, "And then?"
Sensibly, the social worker said "Under the circumstances your honor, to recommend adoption was for the best interst of the child."
So there is no legal impediment for a person with a unique gender-preference to adopt.
It is just that such kind of peitioner would have more obstacles to hurdle, and would have more convincing to do.
I liked this case. Its one of the more fulfilling cases.
It was challenging because it required extra effort, some hard work, and drama.
It was fun.

Change of first name

One of the latest queries I received was on the procedure and requirements for change of a person's first name with the Office of the Civil Registrar.
The best thing to do of course, is to visit the local civil registrar in order that you will be guided on the requirements and on what to do step by step.
Anyway, let us take the office of the civil registrar of Manila as our guide.
The following are the requirements for the change of first name of an unmarried petitioner:
1. Two latest certified/local copies and two latest NSO copies of birth certificate to be corrected.
2. Two latest certified xerox copies of marriage contract of parents, if certification of no record was issued submit birth certificates of at least two brothers or sisters.
3. Two copies of baptismal certificate.
4. Two copies of school record, elementary, high school or college (form 137 or transcript of records).
5. Two copies of voter's registration record.
6. Two copies of certification of no adminstfrqative case from employer or an affidavit of non-employment if not employed.
7. Two latest original copies of NBI clearance
8. Two latest original copies of PNP clearance.
9. Two copies of valid ID and one copy of latest community tax certificate.
10 Publication of the petition in a news paper of generalcirculation for two consecutive weeks (after hte interview).

All marriage contracts, birth and death certificates to be submitted hsould be the latest certified xerox copy when issued int he local civil registry. If issued outside, then procure the security paper form from the NSO.

Steps to follow for change of name:
1. Submit all reuqirements tot he receiving table at the office of the local civil registrar for assessment and scheduling of interview.
2.Bring ID and original coducments during the date of the interview.
3. Pay at the cashier payment ofr certified xerox copy of P300, transmittal fee of P180 and registgration fee of P3,000.00 (Payment of publication fee and preparation of petition and notarial fee arenot included.)
4. Publication for two consecutive weeks.
5. After publication, get the affidavit of publication from the newspaper where the petition was published and then submit the same to the office ofhte local civil registrar.
On the schedule date of release, get the corrected copy at the releasing area.

Tuesday, January 24, 2006

First blog

This is my first blog.
Actually, I had a blog before, but I wasn't able to follow through.
I set up this very blog for a very simple reason. I would like this blog to be of service. Since I happen to be in the legal and media profession, the service would be in this area. It will be pro bono, free.
What we shall do is that I would as much as possible make myself available to respond to some querries you may have that may have something to do with Philippine law. Of course I do not profess to have much, or even adequate knowledge in this field, but many times, the questions that may be posed may have more to do with reasearch rather than legal analysis. So I can and will do that for you.
For instance, friends would just call me or email to ask questions like: "what are the requirements in order to change my first name?" or, "I am a lesbian. Can I adopt?" Or, "I just got my Canadian citizenship. Can I buy properties in the Philippines?" Things like that.
I will look it up in the books and give the response to you. (Its basically a legal research activity). If the question happens to be one that I may have had some experienced in law practice, then maybe I can share some insights .
I have passion in media. So also media topics might occupy some space in this blog.
This blog would also be a journal. I will share my everyday thoughts and feelings, experiences good or bad, if the ocassion warrants.
I am not really that good a writer, so I will try to express the best way I can.
Well, let's have some basic rules and directions:
If you have a question that may have something to do with Philippine law, send me an email to elmarjay [at] yahoo [dot] com.
I will respond to you as soon as I can.
By sending me a question and with the answers later on, I would assume that you permit me to post the discussion in this blog.
The rule is that I will not post your name or any name. It will be presented in a sort of hypothetical way.
Kindly make your question sufficiently detailed, so that I can properly look up an answer. Don't make the question too general like: "My friend shot a person. Is it murder?" This question would not allow a sensible answer because the question didn't say whether the person your friend shot died, or was actually hit.
I wouldn't know how this blog would go.
By the way don't ask me how i got my blog name. But my friends of old would most probably know.