Saturday, December 18, 2010

Divorce recognition expanded in PH

It is not correct to say there is an absolute ban on divorce in the Philippines.
Truth is, there are instances where divorce is recognized here.
The trend seems to expand divorce recgonition.
This is contained in Article 26 of the Family Code.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law”.
The family code justifies that if the foreigner is able to procure a divorce abroad, and as a consequence of the divorce the foreigner is allowed to re-marry, then it is only fair that the divorced Filipino spouse left behind should also be allowed to re-marry.
Lately, the Supreme Court has expanded and made this law applicable even to former Filipinos who become naturalized in another country and subsequently procures a divorce.
This was the ruling of the Supreme Court in Republic versus Cipriano Orbecido (G.R. 154380)
In that case, Cipriano and Lady Myros, both Filipinos were married in Ozamis City.
Later Lady Myros left for the United States.
While in the United States, Lady Myros became a naturalized American.
Thereafter, as an American, lady Myros procured a divorce from her marriage to Cipriano.
In this case, the Supreme Court said the Family Code provision on divorce can be applicable.
The point of reckoning is the citizenship of the divorcing spouse when the divorce was procured, and not the time of marriage.
Thus, the Supreme Court expanded the application of Article 26 of the Family Code, this time covering former Filipinos who are naturalized abroad.
If you look at the letter of the law, it only applies to foreigners who were such at the time of the marriage.
But the Supreme Court examined the spirit, not the letter of the law.
Let’s tweak the facts a little bit.
What if the divorce was obtained by the Filipino spouse abroad, BEFORE the Filipino spouse became naturalized abroad?
The answer to this question, applying simple logic, is that Article 26 will not apply.
Therefore, the Filipino spouse left behind cannot remarry, even if the Filipino spouse abroad obtained a divorce (before being naturalized), and then re-marries there.
The explanation is that since the divorce was obtained while the Filipino spouse was still a Filipino, then the spouse abroad is still subject to Philippine laws, which does not recognize the divorce.
But what if the Filipino spouse abroad, after obtaining a divorce and then re-marrying, subsequently becomes naturalized (becomes a foreigner) ?
Will the naturalization have a retroactive, and curative effect on the previously obtained divorce, such that the Filipino spouse left behind can also re-marry?
There is no case on this yet.
But if the Filipino spouse left behind is not allowed to re-marry, because the divorce procured by the Filipino spouse abroad cannot be recognized in the Philippines---having procured the divorce while still a Filipino---the same unfairness persists.
The Filipino spouse left behind will suffer eternally and cannot re-marry
It can be suggested that if a Filipino spouse abroad obtains a divorce there, such a divorce should be recognized once that Filipino spouse abroad becomes naturalized.
Otherwise, the Filipino spouse left behind cannot remarry and will be in an unfair situation.
Such unfairness is precisely what the Court has tried to remove.

Friday, December 17, 2010

Hubert Webb: Not guilty verdict is not innocence?

I really pity Hubert Webb.
After the Supreme Court acquitted him of the crime of rape with homicide, he is still vilified by the disgruntled.
Some people, legal observers, maintain that a “not guilty” verdict is not tantamount to innocence.
Some say the supreme court merely declared that the prosecution was not able to prove the guilt of the accused beyond reasonable doubt.
This does not mean the accused were innocent, they add.
While the statement is generally true, it is not true in all cases.
In acquitting an accused the supreme court looks at the prosecution’s
evidence to see if the evidence proves the guilt beyond reasonable doubt.
It is not for the accused in a criminal case to prove his innocence.
It is for the prosecution to establish with moral certainty, beyond any reasonable doubt, that indeed, the accused committed the crime.
However, the case of Hubert Webb is far different.
In Hubert Webb’s case, the supreme court not only found reasonable doubt in the prosecution’s evidence.
Not only was the court convinced of the unreliability of the prosecution’s star witness Jessica Alfaro.
Apparently, Jessica Alfaro got tangled in a web of lies (No pun intended).
Hubert Webb was also able to prove his innocence.
The Supreme Court said Hubert's alibi impeached Jesicca Alfaro's testimony.
If one reads the supreme court decision closely, it will readily be seen that the supreme court tackled Hubert Webb’s “documented alibi”.
With unassailed, unrebutted authenticated documents (by no less than two U.S. secretaries of state), Hubert Webb was able to establish that he was 8,000 miles away at the time the Vizconde massacre happened on June 30, 1991.
So for people to say that Hubert Webb’s acquittal does not mean he did not commit the crime, the same people must explain how Hubert Webb could have been in two places at the same time on June 30,1991.
The weakness of the prosecutions case, to my mind, is its failure to rebut the “documented alibi” of Hubert Webb.
And it is too late now to be producing rebuttal witnesses.
The Supreme Court is not a trier of facts.
Litigation has to have an end.
The prosecution should have proved, on rebuttal evidence during the trial in the lower court, that the alibi documents of Hubert Webb were false, fake, forged, or fabricated.
Alternatively, the prosecution should have proved, on rebuttal evidence, that it is physically possible for a human being to be in two places at the same time.
What the prosecution successfully did, was to offer conjectures, i.e. that it was possible that Hubert Webb could have sneaked into the Philippines on June 30, 1991, rape and kill three persons, and then sneak out of the country thereafter.
Can this scenario be possible without being tracked by the immigration authorities of two countries?
Yet as to how this could be possible, the prosecution did not offer any proof.
But conjecture is not proof.
Conjecture is nothing but a polluted allegation.
For those who maintain that Hubert Webbs acquittal does not mean he did not commit the crime, it would do well if they can provide a rational and convincing explanation to Hubert Webb’s unrebutted, documented alibi that he was in the United States on June 30, 1991.
Otherwise, Hubert Webb is not merely “not guilty”.
He is also innocent.