Women in Life and in Law (Part I of II)

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I grew up surrounded by the forces of powerful women. From my mother, my grandmothers, my aunts, my cousins, my teachers, the activist nuns from where I attended grade school (St. Scholastica’s College), the all female faculty where I attended high school (St. Theresa’s College – Cebu), my sorority sisters in college, female Presidents, and the female heroes I read about, I knew early on how special a woman’s role is in society.

Historically and culturally, in the Philippines at least, the female wields substantial influence: we call Nature and Earth “Inang Kalikasan”, we refer to our country as our Mother Land or “Inang Bayan”. Pre-colonial Filipinas hold “babaylans” or priestesses, “catalonans” or healers, mothers and elderly women in equal societal regard as men.

Mylene Hega et al on Feminism and the Women’s Movement in the Philippines: Struggles, Advances and Challenges state that:

“The babaylan was not subservient to the datu, who was considered the wealthiest, the strongest, the wisest, and often the bravest, member of the clan – which made him the rightful head. Instead, the datu and the babaylan worked together on important social activities. Being the spiritual leader, the babaylan was in charge of rituals, including those of agricultural significance. Through her knowledge in astronomy, she determined the right time to clear the land, as well as the planting and harvest cycle. She also studied and took charge of medicine, developing her knowledge and passing this on. xxx

The persona of the babaylan embodied the traditional role of women in pre-colonial Philippine society: They performed vital functions, and were recognized for their social and cultural leadership.”

Lorna Torralba’s La Mujer Indigena – The Native: A Description of the Filipino Woman During Pre-Spanish Time, she cites Teresita Infante´s documented study, The Woman in Early Philippines and Among Tribal Minorities, where there is a description of the role of women among the Kalingas:

“Kalinga women are not barred from belonging to the highest rank of society, which entitles them to the privileges equal to those of men in similar rank. Some are recognized as pact holders and as she is the one who owns the pact, only her children or relatives have the right to inherit it.” Pact holders were those who held agreement with a prominent citizen of another tribe or community in which each party agreed to give protection and aid to all members of each other´s community while they were in his/her territory. Punishment was imposed if any harm had been done to them by his/her tribe member. This important position of being a pact holder was recognized among women in the pre-Spanish society.

In the event of divorce caused by childlessness, infidelity, failure to fulfill obligations towards family, etc. the dowry had to be returned by the bride´s family if she was at fault. However, if the husband was at fault, he lost any right of its return. The children were divided equally between the two regardless of sex. The conjugally-acquired property was also divided equally. This way, she possessed equal rights with regard to divorce according to law and custom.”

Things have shifted with the onset of colonialism (the “dalagang Pilipina” and friar oppression by the Spaniards), world wars (American and Japanese occupation and war related oppression), but the blood of indigenous Filipinos and Filipinas run deep and strong despite it.

Large strides have been taken to close the gender gap through the years. In fact, the Philippines lead all the countries of Asia in terms of gender equality.

The Global Gender Gap Report 2020 of the World Economic Forum shows that the Philippines is the only Asian country that made it to the top 20 list of countries based on progress towards gender parity in four dimensions: economic participation and opportunity, educational attainment, health and survival, and political empowerment. In 2020, the Philippines have closed as high as 81% of the gender gap in economic participation and opportunity, educational attainment, health and survival. Female life expectancy in the Philippines is five (5) years longer than men, and we have a 98% literacy rate for both sexes.

Where we need more work in is female participation in politics and government, and therefore, policy development.

More women in politics and in government is NEEDED. We need more women representatives in Congress to help reframe, and amend possibly antedated or unjust provisions of the law. We need more women representatives to make discussions diverse, and more sides covered.

In the next part of this series, I will discuss the most memorable and impactful pieces of legislation that champion gender equality, the victories of the women’s movement, and how else the law could be improved to truly close the gender gap.

Debunking Notaryo Myths: Why Notarizations Are Important

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You might have encountered the word notary or notaryo quite a few times in your life as a requirement for school or work. If you’re around my age or older, I imagine you also thought about a table with a typewriter under a tree and the words “Notary Public.” Affidavits of Loss are probably the most common documents I’ve drafted and notarized, followed by Lease Contracts, and Deeds of Sale. 

What is a Notary, and how is a document notarized? A Notary or a Notary Public is a person who is authorized and commissioned by law to perform official notarial acts. The most common notarial acts are certifying that documents are a true copy, acknowledgments, and jurats. In the Philippines, the most basic requirements of a Notary is that he or she must be a lawyer (member of the Philippine Bar), duly commissioned by the Court to be a Notary (after a Petition is filed and a hearing conducted for the purpose). It’s important to note that not all lawyers are Notaries Public, but all Notaries Public are lawyers. Notarial acts and rules are found in the 2004 Rules of Notarial Practice (A.M. No. 02-8-13-SC)

A document is notarized when, after the party personally appears before a Notary and signs the document, the Notary signs, and affixes their seal on the document, and enters it into the Notarial Register (a book). This Register is then submitted to the RTC Office of the Clerk of Court where the Notary is commissioned every month, together with the duplicate original of the documents notarized. 

With the onslaught of the Covid-19 pandemic, the Supreme Court issued rules on remote notarizations (AM 20-07-04-SC) where the personal appearance of the signatory before the notary public is no longer required, as long as there is video evidence of the act of signing and the original signed documents are sent to the notary public via courier. In lieu of personal appearances, the signatories would have to appear via videoconferencing with the notary, who must verify that the documents received via courier are the same documents that the signatories signed

Effects of Notarization

When any document is notarized, it becomes a public document. This essentially means that the “entire world” is made known that this document exists, that the contents are true, and that the person/s who signed truly signed the same. It makes a document authentic, and binding to third parties.

Does it mean that when a contract is not notarized, it has no valid force and effect? Not necessarily. Remember, a contract exists as long as there is a meeting of the minds between two consenting parties, agreeing on an object, and its consideration. It is fully enforceable as long as the statute of frauds (Art. 1403 of the New Civil Code) is met: that certain types of contracts must be in writing to have full force and effect, like Deeds of Sale of Real Property, among others.

Failure or lack of notarization does not invalidate the transaction or covenants in a contract. This means that if you entered into a loan agreement, in writing, duly signed by you and the other party (debtor or creditor), the contract is generally valid and enforceable even without being notarized. You still need to pay (or get paid) even if the agreement is not notarized. It is still a binding covenant between you and the other person who signed the contract. 

The Supreme Court in the case of Menauza vs. Fermin (2014) states that:

“A defective notarization will strip the document of its public character and reduce it to a private instrument. Consequently, when there is a defect in the notarization of a document, the clear and convincing evidentiary standard normally attached to a duly-notarized document is dispensed with, and the measure to test the validity of such document is preponderance of evidence.”

This means that unnotarized or defectively notarized documents would require proof of due execution and authenticity before they can be admissible as evidence. 

Practically speaking, if a Deed of Absolute Sale of Real Property is not notarized, the Register of Deeds will not transfer the registration of ownership of title to the property to the buyer. Yes, it creates the obligation for the buyer to pay the seller for the property, but the transfer will not be completed to the buyer’s advantage unless the deed is notarized. 
Another example is a Deed of Sale of Motor Vehicles – while it creates an obligation for the seller to deliver and turn over a vehicle to the buyer for a sum of money, the LTO will not record the sale and issue a new OR/CR under the buyer’s name if the deed is not notarized.

Corporate acts will not be recognized if the Corporate Secretary’s Certification is not notarized: i.e. banks will not open a bank account if the Sec. Cert. authorizing the account opening is not notarized. 
If you lose an ID, especially a government issued one, you need to submit a Notarized Affidavit of Loss. The notarization is really you saying “I swear under oath that my ID got lost, I promise, this ain’t a lie.” Without the Affidavit duly notarized, there is nil chance you’ll get a replacement for that lost ID. 

These are just a few of the practical and necessary applications and examples of how notarizations are important, and the legal implications of having a document notarized. Make sure to consult a lawyer if a document needs to be notarized, and that your Notary Public is legitimate and duly commissioned before you engage their services.

* The author is a duly commissioned Notary Public in the City of Cebu.  

Right to Informational Privacy

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Right to Informational Privacy: The Landmark Case of Vivares vs. St. Theresa’s College (STC)

Vivares vs. STC, decided by the Supreme Court on Sept. 29, 2014, remains to be the authoritative matter on online social media posts, privacy settings, and the greater policy and basis for the writ of habeas data and the right to informational privacy. 

The case involves high school students of St. Theresa’s College Cebu, who posted photos of themselves in their underwear, photos at a bar with alcoholic drinks, on Facebook, with “Friends Only” privacy settings. These photos came to the attention of the school administration, who sanctioned the students as per the school’s student policy. As part of the students’ penalty, the students were not allowed to attend their graduation rites. 

The parents of the students filed petitions for habeas data with the RTC Cebu City, which denied their petition, thus the petition for certiorari with the Supreme Court, claiming that STC Cebu violated their children’s rights to privacy with the collection of the Facebook posts and use and extraction thereof without their consent.

The Supreme Court in this case first laid out the purpose of a writ of habeas data under Sec. 1 of the Rule on the Writ of Habeas Data: 

“The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.” 

The court further described the writ of habeas data as an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. The writ of habeas data exists to safeguard the rights of an individual freedom from abuse in the digital information age in that context.

There are three aspects to privacy, as cited in the case: 1) locational or situational privacy, referring to privacy that is felt in physical space, which may be violated by trespass and unwarranted search and seizure; 2) decisional privacy, referring to the rights of individuals to make certain kinds of fundamental choices with respect to their personal and reproductive autonomy; and 3) informational privacy, relevant to this case, the right of individuals to control information about themselves.

Does one retain informational privacy when you join social media networks such as Facebook? Does it matter if you set your privacy settings to “Friends Only” as in the case at bar? In other words, did the minors limit the disclosure of the photos such that the images were kept within their zones of privacy?

The Supreme Court in this case said, no. That the photos are viewable by “friends only” did not help the students’ case. The Court stated that the digital images under this setting still remain to be outside the confines of the zones of privacy in view of the following:

  1. Facebook “allows the world to be more open and connected by giving its users the tools to interact and share in any conceivable way;” 
  2. A good number of Facebook users “befriend” other users who are total strangers;
  3. The sheer number of “Friends” one user has, usually by the hundreds; and
  4. A user’s Facebook friend can “share” the former’s post, or “tag” others who are not Facebook friends with the former, despite its being visible only tohis or her own Facebook friends.

In short, setting a post’s or profile detail’s privacy to “Friends Only” is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content. Had it been set to “Me Only,” the results would have been different.

The Court goes on to state that internet users should be cautious and exercise sound discretion regarding how much information about themselves they are willing to give up. By entering or uploading any kind of data or information online, users are automatically and inevitably making it permanently available online, the perpetuation of which is outside the ambit of the users’ control. 

“The individual’s desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives”, says Alan Westin, Privacy and Freedom (1967) cited by the Court in the beginning of this case aptly described the tug and war of privacy and social media.

The Law and Public Displays of Wealth

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Just recently, a local actress drew flak for commenting on a public official’s wife’s post, calling it out for being “insensitive” in view of the current pandemic.

I tried to see it in the local actress’ point of view, who may have a point but didn’t know how to eloquently say it. Maybe what she was referring to was that provision in R.A. No. 6713 or The Code of Conduct and Ethical Standards for Public Officials and Employees, or could it be that provision under Human Relations of the Civil Code of the Philippines?

What R.A. No. 6713 says on displays of wealth

R.A. No. 6713’s main policy is to promote a high standard of ethics in public service. The law states requires that Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest.

The said law enumerates the norms of conduct of Public Officials and Employees that every one of them shall observe as standards of personal conduct in the discharge and execution of their official duties. I think the most apropos provision in this scenario is found in Section 4 (h), to wit:

“(h) Simple living. Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.”

The law seems to be clear, straightforward and devoid of further interpretation, but read again. How do you define modest? What is appropriate? How do you determine extravagance? What is ostentatious?

What might be modest to one may not be modest to another. A Corvette to someone like me is an extravagance, but a drop in the ocean to someone like Senator Pacquiao, who is known to have become a billionaire from his boxing earnings and investments prior to his stint in politics. However, there’s still the catch-all provision that “they shall not indulge in extravagant or ostentatious display of wealth IN ANY FORM.” How does one deal with the phrase “IN ANY FORM?”

I think this has to be construed in accordance to the personal circumstances of the public official and his or her family. This is exactly why SALNs (Statement of Assets, Liabilities and Net Worth) are submitted regularly by public officials and employees to provide transparency, and for the public to gauge who has questionable sources of wealth.

This interpretation is in line with RA 6713’s Implementing Rules and Regulations, where it further defines the definition of MODEST AND SIMPLE LIVING.

Section 8 of the IRR states:

“Section 8. Officials and employees and their families shall lead modest and simple lives appropriate to their position and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.

Basically, modest and simple living means maintaining a standard of living within the public official or employee’s visible means of income as correctly disclosed in his income tax returns, annual statement of assets, liabilities and net worth and other documents relating to financial and business interests and connections.

Public funds and property for official use and purpose shall be utilized with the diligence of a good father of a family.”

Unfortunately for the local actress, politico’s wife did not run afoul of the modesty provision with her posts, since their family had acquired wealth as private citizens for many years from legitimate sources, and their standard of living is within politico’s visible means of income as disclosed in his government filings (i.e. SALN). A quick google search would reveal that the said politico is one of the richest people in the world because of the sport he excelled at prior to his becoming a public official.  

What the Civil Code says about displays of wealth

The Civil Code of the Philippines under Human Relations has a little known provision on displays of extravagance:

“Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution.”

This applies to all persons, whether a private citizen or a public official/employee altogether. There being a pandemic and immense economic turmoil, its possible for government OR a private charitable institution to file a civil case to prohibit ANYONE from showing thoughtless extravagance these times.

What Court would stop local politico’s wife from posting on her social media account? Let’s get real here: it would be a waste of judicial resources to police people in their social media posts when we have no clear cut definition on what exactly the word “extravagance” means.

The problem of these laws are still its relativity and being open to interpretations (i.e. show of wealth “in any form”, definitions of extravagance). Given this was passed during very different times (1949 for the Civil Code and 1989 for RA No. 6713, both more than 30 years ago), I presume it’s high time this was revisited to see if it still reflects the spirit and intent of the law as applied today.

Libel: When words could hurt Government Officials

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Times of calamity, unrest, and pandemic truly test the people’s patience with their elective officials most especially. A scroll on your Facebook page illustrates this point emphatically: Governor vs doctors and doctors vs Governor on ways to prevent Covid-19, the Mayor and the missing chickens (that was quite funny), the participation of businessmen in political and public management and service, among many issues.

Will a pent up public, whose only recourse pending the next elections is the keyboard, get into trouble for typing and posting scathing or critical words against their government officials under existing laws?

Let’s talk LIBEL, but against government officials.

First, we have to establish what the legal definition of libel is, according to the Revised Penal Code:

“ARTICLE 353. Definition of Libel. — A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Loosely stated, your post or statement is libelous (and therefore the act is punishable) if it causes a stain or dishonor on the person you refer to dead or alive. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

  1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
  2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Okay. Now let’s say that you are imputing something against a public official on a Facebook Article via a comment. Let’s say you posted something in the likes of “WALANG KWENTA NAMAN SI GOV. X, WALA NAMAN ALAM YAN SA MEDISINA, TONTA!” in response to how said Gov. X implemented rules in relation to a pandemic. Will Gov. X have any case for libel against the Facebook poster?

The Supreme Court of the Philippines in the case of US vs Bustos [1] held in 1918 states:

“The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public opinion should be the constant source of liberty and democracy.

See the well considered cases of Wason v. Walter, 4 L.R. 4 Q. B., 73; Seymour v. Butterworth, 3 F. & F., 372; The Queen v. Sir R. Garden, 5 Q. B. D., 1.

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over the individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. On the contrary, it is a duty which every one owes to society or to the State to assist in the investigation of any alleged misconduct. It is further the duty of all know of any official dereliction on the part of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice Gayner, who contributed so largely to the law of libel. “The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism.

Howarth v. Barlow [1906], 113 App. Div., N. Y., 510.

But there is also a fairly recent case of People of the Philippines vs. De Leon [2] in 2016 that also involves scathing remarks against a public officer where the Supreme Court stated:

“One of man’s most prized possessions is his integrity. There lies a thin line between criticism and outright defamation. When one makes commentaries about the other’s performance of official duties, the criticism is considered constructive, then aimed for the betterment of his or her service to the public. It is thus, a continuing duty on the part of the public officer to make room for improvement on the basis of this constructive criticism in as much as it is imperative on the part of the general public to make the necessary commentaries should they see any lapses on the part of the public officer. In this case, however, the criticism was more destructive than constructive and, worse, it was directed towards the personal relations of the parties.

In this case, a police officer was called “walanghiya,” “mayabang” and “mangongotong” in public, which the court found to have unquestionably constituted grave oral defamation. According to the Court, these words seriously attacked the police officer’s character. The term “mangongotong” actually imputed a crime that was dishonorable to him as a police authority. There having been no provocation on the part of the officer and that the utterances complained of were not made in the heat of unrestrained anger or obfuscation, the court held the accused guilty for the crime of grave oral defamation (libel on paper, oral defamation if done orally/spoken except for radio and tv broadcasts, which still falls under libel).

The two cases above do not go contrary. I think it in fact complements each other, since it states the general rule and instances where there are exceptions.

Therefore, following the recent pronouncements on libel made against public officials, Facebook Poster may NOT be held criminally liable for libel if a Facebook poster could prove that the post was in connection with Gov X’s exercise of public duties.

Gov. X could always argue that these are personal attacks and not made in connection with public duties, and must thus be declared libelous by the proper courts. On the other hand, the poster could always argue that yes, criticism does not authorize defamation, nevertheless, as the individual is less than the State, so must expect criticism to be born for the common good.

  1. G.R. No. L-12592. March 8, 1918
  2. G.R. No. 212623, January 11, 2016 – ENRIQUE G. DE LEON, Petitioner, v. PEOPLE OF THE PHILIPPINES AND SPO3 PEDRITO L. LEONARDO

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