Proposed divorce law in the Philippines

philippine law blogPhilippine divorce lawsImage via WikipediaBy Rey Cartojano
For a predominantly Catholic country as the Philippines, the refiling by the Gabriela women's party-list group of a controversial bill to legalize divorce in the country drew mixed reactions.

The refiled measure, now renamed House Bill No. 1799 (An Act Introducing Divorce in the Philippines), lists down five grounds for the filing of a petition for divorce:
1. Petitioner has been separated de facto (in fact) from his or her spouse for at least five years at the time of the filing of the petition and reconciliation is highly improbable;
2. Petitioner has been legally separated from his or her spouse for at least two years at the time of the filing of the petition and reconciliation is highly improbable;
3. When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage;
4. When one or both spouses are psychologically incapacitated to comply with the essential marital obligations;
5. Any of the grounds for legal separation that has caused the irreparable breakdown of the marriage.
Under the present law, particularly Article 36 of the Family Code of the Philippines, only psychological incapacity is the only ground for annulment of marriage, and the process of securing annulment is not only tedious but expensive as well, making the provision biased in favor of those who have the financial means to sustain costly litigation.
Under the proposed divorce bill, separation in fact (de facto) for five (5) years and legal separation for two (2) years are already grounds for divorce, as long as reconciliation of the spouses is highly improbable.  Separation in fact is a widespread phenomenon in the Philippines, especially for couples who could not afford the legal process of annulment, thus providing these separated couples a ground to formally and legally severe their marital ties.  On the other hand, legal separation for two (2) years is thought by the proponents of the divorce bill enough basis to proceed to divorce, considering that the spouses already passed the ordeal and process of legal separation.
The third ground is irreconcilable differences that caused irreparable breakdown of marriage.  What these irreconcilable differences are not clear, for as long as they caused irreparable breakdown of marriage, again without sufficiently defining what irreparable breakdown of marriage means.  The third ground provides possible judicial interpretation based on the facts of the case, which can be questioned as unwarranted delegation of legislative authority, i.e., judicial legislation, or simply unconstitutional for being vague.
The fourth ground of psychological incapacity is feared to be a useless provision if the proposed divorce bill is passed into law, as the other grounds will be easier to establish and less costly for the parties. In fact, the existence of the third ground of irreconcilable differences, which is broader in scope, will be sufficient to absorb this ground of psychological incapacity.

The last ground for divorce, which can be any of the grounds of legal separation under existing law that caused irreparable breakdown of marriage, provides an opening for the broadening in the scope of the coverage for divorce in the Philippines. The Family Code provides the following as grounds for legal separation:
[1] Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
[2] Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
[3] Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
[4] Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
[5] Drug addiction or habitual alcoholism of the respondent;
[6] Lesbianism or homosexuality of the respondent;
[7] Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
[8] Sexual infidelity or perversion;
[9] Attempt by the respondent against the life of the petitioner; or
[10] Abandonment of petitioner by respondent without justifiable cause for more than one year.
In effect, the proposed divorce bill added ten (10) more specific grounds for divorce as enumerated above, as long as the said grounds caused irreparable breakdown of marriage, again without clearly defining what irreparable breakdown means. 
The Philippine Daily Inquirer reported that the refiling of the bill quickly elicited an objection from Parañaque Rep. Roilo Golez, who said, “That is like giving a married couple a weapon of mass destruction that they can use against each other even for petty, solvable marital problems.”   

Buhay party-list Rep. Erwin Tieng also said his group was against divorce because it was tantamount to giving troubled marriages an “exit clause from a very important union.”   He suggested “preempting” the dissolution of marriages by effective counseling or “better family relations” programs from the Church, government and volunteer groups.
The bill’s authors, however, said a divorce law would address the issue of domestic violence. Police statistics in 2009 showed that 19 women a day fell victim to marital violence.  Gabriela Representatives Luzviminda Ilagan and Emerenciana De Jesus stressed legalizing divorce would give “married couples in irreparable marriages another legal remedy that they can resort to in addition to the country’s existing laws on legal separation and annulment.”
Ilagan and De Jesus said a divorce law could help put an end to domestic violence still prevalent among married Filipino couples.  The Philippines is one of only two countries in the world (excluding the Vatican) that has not legalized divorce.  “For women in abusive marital relationships, the need for a divorce law is real. It is high time that we give Filipino couples, especially the women, this option,” said Ilagan and De Jesus in the bill’s explanatory note.
It appears that the proponents of the divorce bill anchor principally their arguments on domestic violence, citing several alarming statistics to establish convincingly their points.  However, the grounds being proposed under the divorce law encompass areas outside of domestic violence, as for instance the addition of the ten (10) grounds under legal separation as grounds also for the filing of divorce.
Although it is really high time that the Philippines takes a second very serious look on our outdated and unresponsive law on annulment, the proposed bill on divorce appears too revolutionary and unwieldy for most Filipinos.  While we are cognizant that our various tribal and cultural communities had already indigenous customs and practices similar to the divorce being practiced by the Muslims especially in southern Philippines which ALL predated the advent of Spanish, American and Japanese colonizers, we have to face the reality that a revolutionary and unwieldy divorce bill as proposed now may not pass into law especially with the strong opposition of the Catholic hierarchy.  

But tempering and limiting its provisions, and making it cover only to very specific and defined grounds, such as for instance repeated domestic violence, may probably cause a rethinking by the local Catholic hierarchy of its position on the issue.  After all, if Italy and Spain, which are supposed to be centers of global Catholicism have their own versions of divorce laws, why can't we have here also in the Philippines?

Why It Pays To Stay Out Of Court

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Staying Out Of Court: DISPUTE RESOLVED.CASE CLOSED.
By Beverly Caboteja
Everybody wants justice. Justice maybe right next door but it takes a while to find it. It demands patience. Some people are better at it than others. Some people just give up.
That is why a lot of people run after litigations and seek for the best lawyers in town to only get what is due them. But oftentimes letting go of the idea to be in trial to acquire justice is not passivity. It is not the same thing as simply resigning oneself to whatever circumstances come along. Rather, it is simply embracing the possibility that everything can be settled without laying too much burden on oneself. And this is how suggestive amicable settlement is.
Amicable Settlement, as defined, is the most common form of dispute resolution between contending parties. This is a discussion or negotiation process between the parties involved with a view to find a commonly accepted solution for the disputes that have arisen and one which satisfies both parties. The resolution through amicable settlement presumes that the parties are willing to proceed with mutual concessions in order to bring about a win - win situation.
While the court will work for harmonizing views among the two sides, both parties are expected to make utmost, sincere and serious efforts and come together to elude costly litigation and arrive at a just and peaceful solution to teething troubles. With this, procrastinations caused by trial resulting to complexities between parties, are deemed bunged.
So why one would opt an amicable settlement rather than exhaust himself from the rigors of an arduous or backbreaking trial? Few of the reasons would say so. Amicable Settlement as a method of dispute resolution is characterized by the following advantages:
1. Lesser expenses, more savings
One effect of an amicable settlement of a lawsuit is a reduction in expenses associated with ones case. By reducing expenses, you come to save more of your money. The quicker it concludes, the lesser time, one will be in court.
A lawsuit that ends up going to trial oftentimes hinge on the courts for years. Certainly, months will pass before a lawsuit makes its way to a trial stage. An effect and benefit of an amicable settlement of a case is that it concludes quicker. The disputes are resolved within a shorter period of time. Rather than spending months or even years in court, you are able to conclude the matter and have your settlement payment in hand in a fraction of the time.
2. Everybody goes home happy.
Well settled is the rule that settlement in civil cases is encouraged to save time and expense. One party gets from the other and vice versa. Such agreement will be submitted in court. And it is noteworthy that one positive effect of an amicable settlement is that you know you will be getting at least some type of recovery. Neither of the parties wins nor loses. So everybody goes home happy.
3. Limits emotional hang-ups
Lawsuit may be a legal matter, but it may also have a brunt of your life and will affect you personally. Undeniably, almost every lawsuit attaches emotional elements, not only to the counsel but most especially to litigant parties. The longer a lawsuit meanders onward, the greater the toll it takes on one’s personal life. One lawyer says that “a sometimes-overlooked benefit of an amicable settlement--but nonetheless an important one--is that a negotiated resolution restores a sense of balance to your personal life. It also allows the preservation of the good relations between the two parties since amicable settlement is based on the intention of the parties to resolve their disputes in cooperation.”
There may be a lot of reasons still left construed, but that’s how I see amicable settlement in its laudable purpose. And as I have learned throughout this study, it’s not about the bulk of cases you’ve lost but rather the number of cases you’ve settled before taking the recourse of trial.
On the other hand, being able to resolve disputable matters in an amicable settlement also separates good lawyers from the bad ones.
One article says that one of the best gauges of a good lawyer is not that he has many cases, but that he knows how to settle a case before he saves his client from a lot of trouble. While a bad lawyer is one whose cases always ends up in trial. He has many cases and he does not have time anymore to study each cases. So he ends up inefficient.
True, indeed, that others bog down in the procedural trenches and that is often intentional. Why? Well, some lawyers don’t do anything but the trial. Maybe they are accustomed of doing that. Or perhaps, some think that the idea of practicing law is in there, while some treat it as a training ground honing them to become the best they know. But the worst is, they know that prolonged litigation leads to considerable expense, which translates into fees for lawyers.
Abraham Lincoln, who was once a lawyer and became one of the best presidents of the United States, gave an advice to lawyers: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man there will still be business enough.” Meaning if you are a lawyer, you have a strong influence to convince your client to settle problem with his opponent. You do not have to worry about losing fees for there are still cases to come. Even if you will come out the winner in the case, you are still the loser in terms of waste of time, money and effort.

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The Maguindanao massacre and Philippine law on terror

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Maguindanao Massacre

With the unprecedented scale of barbaric violence in the recent Maguindanao massacre, the question arises if the situation calls for the applicability of Republic Act No. 9372 otherwise known as the Human Security Act of 2007 which imposes stiffer penalties than the common crime of murder.


Under Section 2 of the above-named law, it is declared a policy of the State to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.

Terrorism is defined under Section 3 thereof as any act of any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d‘Etat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,

or under

1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

One of the elements of the crime of terrorism is the creation of condition of widespread and extraordinary fear and panic among the populace which clearly the Maguindanao massacre is squarely situated. Unfortunately, the qualifying clause thereof is "in order to coerce the government to give in to an unlawful demand" is not applicable, as there was no coercion at all on the government on the part of the perpetrators. In fact, the suspects appeared to be local government leaders, policemen and their armed civilian militias.

The latest moves from government prosecutors appear to be not to prosecute the perpetrators under the anti-terror law, as public pronouncements point to a 36-hour deadline in the filing of case in court in contrast to the 72-hour deadline under Section 18 of the anti-terror law.

Assuming that prosecutors will invoke the anti-terror law, the same will be a costly legal mistake as the move will only help the perpetrators resulting in the latter's possible, if not, inevitable acquittal.

In addition, with the clamor of speedy resolution of the dastardly crime, the invocation of the anti-terror law may be further delayed with the advent of the May 2010 elections as the accused may request for suspension of the proceedings or trial as the provisions of the said anti-terror law are deemed suspended one month before and two (2) month after the holding of any election.

Is leaking court decision ground for administrative sanction?

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Leaking Of Court Decisions

Is leaking court decision ground for administrative sanction? The answer to this query involves the fate of retired Supreme Court Justice Ruben Reyes.

In the case of Justice Reyes, the Supreme Court found him leaking an un-promulgated election decision on an election case involving the citizenship of Negros Oriental Rep. Jocelyn Limkaichong. As Justice Reyes already retired, he was suspended indefinitely from law practice.

Eight of the 15 justices voted to impose the penalty on Reyes after finding him guilty of gross misconduct for violating his oath as member of the Bar as well as the Code of Professional Responsibility. It was the first time the SC has penalized a retired justice with indefinite suspension, which is considered second only to disbarment in severity.

In addition to lifetime disqualification, the Supreme Court also impose a fine of P500,000.00 on Justice Reyes. The cash penalty was deducted from the retirement benefits to be received by Reyes, which reportedly amount to some P4.45 million.

The Supreme Court pointed out the “evident undue interest of Justice Reyes to circulate a draft ponencia (decision) of the case soonest even before the memoranda of all the parties fell due… It was Justice Reyes himself who leaked a photocopy (of the decision),” the decision stated.

The administrative sanction even on a Justice of the the Supreme Court is seen by members of the Philippine Bar as a very positive development in cleansing the judiciary of misfits and scalawags.

Finally, Justice Villarama got it!

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Villarama is new Supreme Court justice
By Atty. Rey Cartojano
Nominated nine times by the Judicial and Bar Council (JBC) as Justice of the Supreme Court, Court of Appeals Justice Martin Villarama finally made it and took his oath as the 166th justice of the Supreme Court before Chief Justice Reynato Puno last 07 November 2009, replacing Justice Consuelo Ynares-Santiago who retired last month.
The 63-year-old Villarama is the husband of SC En Banc Clerk of Court Ma. Luisa Dizon-Villarama.
Villarama obtained his Bachelor of Laws degree from Manuel L. Quezon University (MLQU) after graduating from De la Salle University with a degree on business administration.
Born on April 14, 1946, Villarama and Ma. Luisa Dizon have two children - Dr. Clarissa D. Villarama-Cellona, a dermatologist, and Carlo Villarama, who recently took the Bar exams.

2009 Presidential Lingkod Bayan Awardee is Justice Nimfa Cuesta-Vilches

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2009 Presidential Lingkod Bayan Awardee
By Zaldy Vilches

Deputy Court Administrator Justice NIMFA CUESTA-VILCHES of the Office of the Court Administrator, Supreme Court of the Philippines is the 2009 Presidential LINGKOD BAYAN Awardee. This is the highest category in the annual search by the Civil Service Commission (CSC) for outstanding government officials and workers in the country.

The Presidential Lingkod Bayan Award is conferred on to Justice NIMFA C. VILCHES for her outstanding contributions in making justice available for all and her advocacies on women and children’s rights. She carried on with the Supreme Court’s Justice on Wheels program, giving free legal aid and assistance to the poor and needy, which expedited the hearing of minor cases and led to the release of more than a thousand detained prisoners. She spearheaded information and education campaign for farmers, fisherfolks and indigenous people of their rights under the law. In her 26 years of public service in the Supreme Court, she has displayed professionalism and efficiency in the execution of her responsibilities.

The entitlement of a Presidential Lingkod Bayan Awardee to an automatic promotion to the next higher position or salary increase equivalent to the salary of the next higher position is provided for in Section 5 of Executive Order No. 508.

E.O. No. 508 http://www.chanrobles.com/executiveorders/1992/executiveorderno508-1992.html

PFIZER-UNILAB TIFF : It's Not About The Patents

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PFIZER-UNILAB TIFF :
It's Not About The Patents, Stupid!
By Atty. Elpidio Peria

The case filed by Pfizer Philippines, Inc. against the Filipino pharmaceutical firm United Laboratories, Inc. (UNILAB) is not mainly about the patent that was issued by the Intellectual Property Office of the Philippines; rather, it is about maintaining worldwide market control over the product, which is a cash-cow for the company, earning it around US$ 12.7 billion worldwide in 2007, making the drug its best-selling drug ever in its corporate history, and the number one best-selling drug in the world.

Policy-makers and the general public should take note, however, that to maintain its good standing in the US market, Pfizer as reported by the Los Angeles Times last 15 May 2009, had been giving Lipitor away, for free, including viagra, to Americans who have lost their jobs and health insurance from the US recession since January 1 of this year, for up to a year.

The only requirement for this freebie is that those jobless have been on the Pfizer drug for three months or more.

This marketing and public relations ploy stands in contrast to the other marketing methods that were found to be fraudulent by the US FDA itself, especially when on September 2, 2009, it was reported by Reuters to have agreed to pay $2.3 billion to resolve criminal and civil allegations that it illegally promoted several of its drugs beyond U.S. Food and Drug Administration-approved uses and dosages.

In the case of Lipitor as with its other drugs, Pfizer was found to have given kickbacks to providers to have such medicine prescribed.

Pfizer will do anything to maintain its market dominance over the product.

But the bigger prize for now seems to be the potential of statin drugs like Lipitor to combat swine flu. The New York Times reported on 29 October 2009 that people who took Lipitor when they caught flu and had to be hospitalized, were twice as likely to survive than those who were not on such medicines.

It was also reported that a federal study is underway to test these occurrences and doctors are optimistic because previous studies have shown that statins improve survival from infectious diseases.

According to the World Health Organization (WHO) website on the AH1NI1 virus, as of 25 October 2009, there have been more than 440,000 laboratory confirmed cases of pandemic influenza H1N1 2009 and over 5700 deaths reported to WHO worldwide.

The WHO figures appear with a disclaimer that since countries are no longer required to test and report individual cases, the number of cases reported actually understates the real number of cases.

Given this potential for a new market for Lipitor, Pfizer is just acting like a typical monopolist seeking to maintain its dominance on its best-selling drug, even extending its monopoly power to new uses of that same drug.

What Pfizer may want to prove in its suit against UNILAB is its ability to have its patent extended whenever there are new uses of that same drug.

Pfizer will then use this legal principle to apply for a new set of patents on this same drug, but this time with a new application of Lipitor, most probably, swine flu, or with any other disease or pandemic that may come along in the future, which the drug can treat.

When that happens, then Pfizer may have succeeded in 'evergreening' its patent.

'Ever-greening' consists of the patenting of minor changes to or versions of existing products (e. g. formulations, dosage forms, polymorphs, salts, etc.) in order to extend the life of the original patent over an active ingredient.

Whether Pfizer will succeed in getting this legal principle upheld is an interesting matter that will test the effectivity of the new law, the Cheap Medicines Act or Republic Act 9502 in dealing with these issues.

The said law states what may no longer be patentable in the case of inventions relating to drugs and medicines :
a) the mere discovery of a new form or new property of a known substance which does not result in the enhancement of the known efficacy of that substance,
b) the mere discovery of any new property or new use for a known substance,
c) the mere use of a known process unless such known process results in a new product that employs at least one new reactant.

To a non-lawyer, and even lawyers with no background in patent law, all these legal terms boil down to a requirement that for a new chemical substance to be patentable, it must be shown to have an enhanced efficacy.

What efficacy means however is not yet clear, as the implementing regulations of the Cheap Medicines Act on this matter has not yet come out.

The Cheap Medicines Act tasks the Intellectual Property Office of the Philippines (IPO) the duty to develop the criteria for determining what efficacy means, which shall be embodied in the Manual for Substantive Examination Procedure (MSEP).

The Manual is what will guide patent examiners on whether to grant or deny patent applications before the IPO.

But so far, the IPO has not come out with information even on its website what it is doing to develop this Manual as the current Manual on its website does not contain any references to the Cheap Medicines Act.
oOo

What happens to PNRC after Liban v. Gordon

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Liban v. Gordon
By Atty. Rey Cartojano

The recent ruling of the Supreme Court in Liban vs. Gordon raises many problematic issues concerning the fate of the Red Cross movement in the Philippines.

The Supreme Court in a 7-5 ruling justified the holding by Senator Richard Gordon of the Chairmanship of the Board of Governors of the Philippine National Red Cross (PNRC) by nullifying almost all provisions of Republic Act No. 95, as amended, otherwise known as the PNRC Charter.

Reversing its earlier position in earlier cases that PNRC is a government- owned or controlled corporation, the Supreme Court through Associate Justice Antonio Carpio found that PNRC is a “privately owned, privately funded, and privately run charitable organization”, and as such, the PNRC Charter passed by Congress suffers constitutional infirmity in the light of Article XII, Section 16 prohibiting Congress from passing a special law creating private corporations.

Had the Supreme Court found that PNRC is a public corporation, or a government-owned or controlled corporation as enunciated its earlier decisions, Senator Gordon could have forfeited his Senate seat in the light of Artice VI, Section 13 of the Constitution prohibiting members of Congress from holding office in government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during their term without forfeiting their seats.

But the majority ruling raises more questions than answers.

In a strong dissenting opinion, Associate Justice Antonio Eduardo Nachura, concurred in by four (4) other Justices, maintained that Senator Gordon violates the Constitution by holding the chairmanship of the Board of Governors of the Philippine National Red Cross (PNRC) as the latter is a government-owned or controlled corporation, if not a government instrumentality.

The dissenting opinion faulted the majority in its sole reliance of categorizing a corporation as government-owned or controlled through the literal control test, especially in the 51% control of capital stock in case of stock corporations, as defined in Section 2(13) of Executive Order No. 292, otherwise known as the Administrative Code of 1987, as the said provision provides further a qualification that a GOCC may be categorized “for purposes of the exercise and discharge of their respective powers, functions and responsibilities”.

In fine, the dissenting opinion said that “a GOCC may either be a stock or non-stock corporation, or that it ‘may be further categorized’, suggesting that the definition provided in the Administrative Code is broad enough to admit of other distinctions as to the kinds of GOCCs”.

The dissenting opinion said that PNRC is at the very least a government instrumentality, citing Section 2(10) of Executive Order No. 292, to wit:

Instrumentality refers to any agency of the National Government not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.
There is information that a motion for reconsideration is being considered to be filed with the Supreme Court. A change of heart of one Justice will reverse the tide against Senator Gordon, as there will be a deadlock in the High Court, thus paving for the possibility that the PNRC Charter will be upheld as constitutional, as there is always the presumption of the constitutionality of congressional enactments in cases of deadlocks in Supreme Court rulings.

Not only that, the appointment of two (2) additional Justices in the High Tribunal will change the voting alignments, as there is that possibility of another deadlock even assuming that the present majority of seven (7) Justices will stick to their positions.

Assuming that the present Supreme Court ruling will be sustained, we have problematic scenarios for the Philippine Red Cross movement.

First, the PNRC organization as defined in Republic Act No. 95 will be dissolved, as a necessary consequence of the ruling that its Charter is null and void.

Second, the Board of Governors as constituted under the PNRC Charter will also be dissolved, putting in a possible state of hiatus and confusion the management and operations of the PNRC.

An interesting question is whether or not the existing Board of Governors, as constituted, can continue governing the operations of the ‘un-chartered or unincorporated’ PNRC, especially in the light of the fact that some of its members are appointees of the President. Can the Chapters call an organizational meeting to reconstitute a new Board of Governors?

A new and recent twist is the pending Senate Bill No. 3285 and House Bill No. 6509 which both propose to amend Republic Act No. 95, or the PNRC Charter.

At the outset, the passage of the new Red Cross bill will suffer the same fate as Republic Act No. 95 if we assume the reasoning of the majority in the Liban v. Gordon case, as many will consider the new Red Cross bill as an exercise in futility. But on second thought, is it really an exercise in futility? There is the view that even with the affirmation of the majority ruling by the Supreme Court, it will take possibly years for the Supreme Court to declare again this new Red Cross law as unconstitutional, and there is always that possibility that the High Court may again change its position depending on the changes in the composition of the Justices.

Another complication in all these legal discussions is the effect of the scenarios on the fate of Senator Gordon as Chairman of the Board of Governors of the PNRC. Senator Gordon, a declared candidate for President in the 2010 elections, appears to be consolidating his hold on the PNRC through his open support of the proposed new Red Cross bill, but this has serious back lash on many Red Cross stakeholders who are not in conformity with how Senator Gordon has politicized an organization that is supposed to be independent, neutral and apolitical.

The final resolution of Liban vs. Gordon may still provide the chance to put an end to the perceived growing politicization of Red Cross if and when the Supreme Court will have a change of heart and consider PNRC as a government-owned or controlled corporation, or a government instrumentality.

The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs

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“In this corner, Round 1:
The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs”
By Atty. Ping Peria

The recent Supreme Court (SC) decision in G.R. 149907, in Roma Drug and Romeo Rodriguez v. The Regional Trial Court of Guagua, Pampanga, the Provincial Prosecutor of Pampanga, Bureau of Food and Drugs and Glaxo Smith Kline has shown the possibilities of the almost a year old Cheap Medicines Act (Republic Act 9502) in legitimating actions that will effectively bring down the prices of medicines in the country, this on the eve of the one-year anniversary of the said law signed by President GMA last 6 June 2008.

The SC decision has not yet been appealed by the losing sides and Marvin A. Tort of Business Mirror (May 15-16, 2009) opined this may result in unscupulous retailers directly importing near-expiry drugs or medicines that are cheap and pass this on to the public for profit. While the concern is valid though completely unsupported by proof that such had actually happened, there are broad implications of the Supreme Court decision that indicates the case may just be an opening round of what may eventually become a highly-contentious area of litigation between the general public and the pharmaceutical industry. Where are the government agencies in this dispute? They will be forced to choose between taking the side of the public and uphold the Cheap Medicines Act or side with the multinational corporations who will also fight hard to maintain their prerogatives promoted by the Special Law on Counterfeit Drugs, the law which was effectively sidelined but not nullified by the SC decision..

Justice Tinga, the ponente or the writer of the decision, was a gifted law student and a bar topnotcher and he was previously a Congressman before he was appointed to the bench in 2003. He was presented, at first glance, a most momentous of cases in a magistrate's life, on whether to invalidate a law on the ground that it violates the Constitution. Being more of a politician than a jurist, he was trying to be friendly to all sides while attempting to do his duty to do justice.

Had he been concerned with fostering clear guidelines to aid future litigation on these types of cases and cement his legacy as a remarkable Justice in the highest Court of the land, he could have ruled on the constitutional law issues raised by the drugstore owner, such as the following :
1) whether the Special Law on Counterfeit Drugs violates the equal protection clause of the Constitution, the legal principle which states that every one is equal before the law and there shall be no special treatment of subject matter which is not properly classified;
2) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 11, Article XIII which calls on the State to make essential goods, health and other social services available to all people at affordable cost;
3) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 15, Article II which states that it is the policy of the State to protect and promote the right to health of the people and instill health consciousness among them.

Too bad, there is case law which says that if a court can decide a case avoiding the constitutional issues raised, the court will take the path of least resistance and go for the easier route. This is because courts are reluctant to overrule the will of the legislator, in this case, those who passed the law, as they are deemed to be full of wisdom, they being the representatives of the people and the laws they have passed are presumed valid and in accord with the Constitution.

In a legal sleight-of-hand, the SC here waved aside those weighty constitutional law issues and declared them moot as there is another law which must be taken into account, the Cheap Medicines Act, passed in 2008. Remember that this case got started in the year 2000, when the government agencies raided the store of Petitioner Roma Drug in Pampanga.

So, does this mean that being a social legislation at the same time, the Cheap Medicines Act can just look at certain acts, even if it had happened in the past, and declare such acts invalid ?The SC did not give such explicit guidance, but illustrated how a law protecting the rights of a broader set of people might be applied, by quoting the provisions of the law in the decision and saying all these provisions apply.

Thus, the Supreme Court avoided a messier result in constitutional litigation, that of nullifying the Special Law on Counterfeit Drugs, a law which was passed through the aggressive lobbying efforts of the pharmaceutical industry in the Philippines. Perhaps Justice Tinga was concerned about the howl that may result had he penned his valedictory ponencia differently, but he said quite a mouthful about the said law being a “heartless, soulless legislative piece”. Lawyers will not take this to heart even if it may please most public health advocates, as such statement is devoid of legal meaning, it is what is called in law school, obiter, or an aside. It sounded more like playing to the audience or the gallery, this populist piece of rhetoric in the SC decision.

What happens now with this result? This establishes a precedent which, if it does not get modified and further qualified after the motion for reconsideration which in all likelihood may be filed by the losing side in this case, will most likely affect the following :
1) the prosecution and trial of similar cases under the same provisions of the Special Law on Counterfeit Drugs which face possible dismissal based on this decision, if their counsels would find it fit to identify and use the precedent of this case;
2) the 2001 case filed by the grouping of multinational drug companies in the Philippines, the Pharmaceutical and Healthcare Association of the Philippines (PHAP), against the Department of Health on parallel importation, still currently undergoing litigation in a Makati trial court, should now be dismissed with the legal principle enunciated in this case though it is up to the Office of the Solicitor-General to make such assertion in such a way that may not contradict its position in cases involving the Special Law on Counterfeit Drugs which it may have also sought to uphold;
3) The current debates in Congress on the pending BFAD Charter amendments, where the concept of “misbranding” is undergoing deliberation - there are those who argue that “misbranding” should also refer to intellectual property rights (IPR)-related cases which will bring back the problem of linkage where the BFAD will resolve IPR-related cases which is outside its competence; advocates for the Special Law on Counterfeit Drugs might just explicitly state in this BFAD Charter amendment that the law on parallel importation which has been liberalized by the Cheap Medicines Act, might just have to take into account what are “counterfeit” drugs, which in effect will limit the reach of the Cheap Medicines Act, using the procedural justification used by Justice Tinga in this case, which is the what happens when a law on a similar topic is passed affecting a previous law also dealing with the same topic.

Just the same, this emerging area of litigation for public health advocates bears close watching in the years to come and the key question is : on whose side will our government agencies be in the future ? The answer to this will be revealed in the next set of cases around these issues.
oOo

Marriage without love is like running engine without oil

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Marriage Without Love
By Beverly Caboteja

I am all here all alone in my room looking at my family picture, feeling nostalgic. I can not help but miss my family.  As I continued gazing upon it, I started to ask, why some parents can’t get married and stay get married? Why do some relationships fail? Why do families break up?

Maybe some of you have also asked the same question. Even I myself wondered why did I ask such question when in fact, I had not experienced such scenario myself.

Probably, nobody who has ever lived wished that they grow in a broken family. Nobody does. Too often we dream to be in a family where love and care always reside- a family where each member brings out the best in us. But there are always exceptions to everything. What if your family is missing a mom or dad because of separation? What might have gone wrong in the course of their marriage?

According to Justice Pineda, marriage without love is like running engine without oil. Sooner or later the engine will burn down. He added, that living together under one roof without love is to live in turmoil soaked in mental torture and suffering. So, why are these given emphasis?

Many might be caught unaware, but the law obliges the spouses now to love each other, that is to have devoted affection for one another. This calls for a relationship which is more emotional than legal, But where there is the fortune of devotion, whether spontaneous or induced, the resulting harmony and openness to sacrifice pleasantly enhance the aims of matrimonial life.

Art 149 of the Family Code of the Philippines regards the family as a basic social institution and as the foundation of the nation. This Article is in line with the policy of the State as expressed in the 1987 Constitution, to protect and strengthen the family. Hence, as mandated, “no custom, practice or agreement destructive of the family shall be recognized or given effect. “  I just remembered then one of the cases we discussed in our Family Relations class and the same was published in one of the articles of Jose V. Sison in “A law each day” of the Philippine Star.

I got amazed that studying cases in law school is also like reading short stories. But, I may say, they are not only ordinary stories. Such stories depict true pictures of life- realities at that- where any person, boy or girl, rich or poor alike can experience. Just like the story of a woman who endured almost 20 years of torture and suffering for the sake of preserving the sanctity of marriage as an inviolable social institution and the foundation of the family. The irony of her case is that when she could no longer endure the tempestuous and cruel relationship she’s even blamed for the break-up. This is the story of Thelma.

Thelma got married to Randy and they were blessed with three healthy boys. But their burning love story only lasted for three years. This resulted to their almost everyday fights. Their frequent quarrels and misunderstanding made both of their lives miserable and hellish. Everyday seemed to be a battle ground for them.

Randy blamed Thelma for being negligent of her wifely duties and for not reporting to him the wrongdoings of their children. And these quarrels were always punctuated by violence, threats and intimidation by Randy against Thelma and their children. In the process, insulting words and language were heaped upon Thelma. As an aftermath of these quarrels, Thelma would sustain bruises and scars all over her body. Thelma suffered and endured the mental and physical anguish arising from these marital fights.

But Thelma reached to a point that she could no longer succumb to such agony. It was Christmas season in 1995, when Thelma protested Randy’s decision to allow their eldest son to travel to a far away place in another city down south. As a result of the heated argument, Thelma sustained bruises all over her body and face, blood clots, and bumps on her head. When she was down on the floor because of a blow in the stomach, Randy hit her head and pointed a gun at her and asked her to leave the house.

Without second thoughts, she left the house. She went to her sister and was accompanied by her other siblings to their parents where her injuries were treated by a doctor. After how many months, Thelma filed a complaint for legal separation invoking article 55 (1) of the Family Code, because of Randy’s physical violence, threats, intimidation and grossly abusive conduct.  This article provides for the grounds where legal separation may be filed. Under this provision, the act must be directed against the (a) spouse, or (b) a common child, or (c) child of the other spouse in a previous relationship, or (d) an adopted child. The violence must be physical, and the gross abuse can be abusive words or language.

The facts of the case would show that indeed there was physical violence and gross abuse inflicted to the aggrieved party Thelma.

On Randy’s part, alibi and denial could only be his lamest defenses. While he admitted that that they had really quarrelled on December 9, 1995, he said he was the one who left their house and stayed in their Greenhills Condominium until five days later when he returned on December 14, 1995 and learned that Thelma had already left the house. He then averred that Thelma’s petition for legal separation should be denied since she is guilty of abandonment.

He raised the defense, that under Article 56 (4) of the FC, the petition for legal separation shall be denied when both parties have given ground for it. Clearly, Randy would not want a legal separation as their conjugal properties would be liquidated and Thelma would get her share.

This case then raises an issue whether or not Randy is correct on his defense?

The Supreme Court answers in negative. The abandonment referred to by the Family Code is abandonment without justifiable cause for more than one year. In this case, Thelma has left Randy due to the latter’s gross abusive conduct. Such abandonment is not the abandonment contemplated by the said provision (Art 56 (4) FC).

The concept of abandonment, as predicated by law, is the “desertion of the conjugal dwelling without intention of returning. There must be an absolute cessation of marital relations, duties and rights with intention of perpetual separation.” This must not only be physical estrangement but also amounts to financial and moral desertion. As to the presumption of abandonment, the same must be rebutted by the presentation of clear, strong and convincing evidence that the absent spouse did not intend to leave the present spouse and the family.  Furthermore, the law requires, for purposes of legal separation, an abandonment of the other spouse for more than one year which must be unjustified.

In the given case, Thelma has adequately proven the presence of a ground for legal separation. The repeated physical violence and grossly abusive conduct directed against the petitioner are lucid and sufficient grounds for the prayed relief. The everyday bruises, scars, black eye and blows bore by Thelma are ample evidences of repeated physical violence. Hence, she is entitled to the relief as provided by law.

It is further noted in this case that, “our Constitution is indeed committed to the policy of strengthening the family as a basic social institution. But it does not establish the parameters of State protection to marriage and the family as that remains within the province of the legislature which shall define all legal aspects of marriage and prescribe the strategy and the modalities to protect it and put into operation the constitutional provision that protect the same.”

With the enactment of the Family Code, Randy’s undeserved acts could not be tolerated by law especially if they demean the rights of Thelma who all the while has tried to salvage the entire household. This would also defeat the purpose of meeting the ends of justice. (Ong vs. Ong, G.R. 153206, October 23, 2006)

So just like any short story, the story of Thelma, imposes a dispassionate reflection. The choice of a lifetime marriage partner is certainly one of the most important decisions a person can make. And that every family is unique, with each marriage partner bringing experiences and values from his or her own family. Unfortunately, there is no such thing as a perfect marriage, “a marriage made in heaven”.

No. Not at all.

Blog on Philippine laws and jurisprudence

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On lazy weekends, we hope we can publish respectable blogs on Philippine laws and latest decisions by the Supreme Court.
This is initial posting, and hopefully more to come.
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