Overdue process?

By: Artemio V. Panganiban / @inquirerdotnet

Philippine Daily Inquirer

No person shall be deprived of life, liberty or property without due process of law…” is the most basic right enshrined in the first section of our Constitution’s Bill of Rights. Deprivation is not necessarily unconstitutional. What is prohibited is deprivation without due process.

Illegal arrests and searches. Moreover, the second section of the Bill of Rights guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose.”

To deprive a person of this right—that is, to be able to arrest him/her, or to search his/her “body, houses, papers, and effects”—the arresting officer must first secure an arrest or search warrant from a judge.

In turn, to issue either or both warrants, the judge is required to personally determine “probable cause” by examining under oath the complainants (or the police officers) and the witnesses they may produce. The warrant must specify the place to be searched and the persons or things to be seized. It cannot be used to search any place or to seize any person or thing other than those specified therein.

My Oct. 6 column (“Dismal record in prosecuting drug cases”) explained the exceptions to the need for warrants, like those made in flagrante delicto and in “hot pursuit.”

Note that courts strictly construe these exceptions. Defects in the warrants, like where the judge did not personally examine the witnesses, or where the arresting officer did not have personal knowledge of the facts and depended merely on “surveillance operations,” make the arrest and/or search illegal.

Similarly, our Constitution grants suspects the so-called “Miranda rights” requiring the arresting officer to inform suspects of their rights to remain silent and to have competent and independent counsel; otherwise, the arrest and search would likewise be illegal.

Moreover, confessions extracted with “torture, force, violence, threat, intimidation, or any other means which vitiate the free will” would also be illegal.

In all these instances, the illegally obtained evidence, even if tending to prove guilt, would be inadmissible in evidence, and would thus result in the acquittal of the accused.

Libertarian pendulum. Why is the Constitution so protective of suspects and so strict on police officers? Because when it was crafted in 1987, the horrifying abuses during the martial law regime were still fresh. Our constitution drafters wanted iron-clad protection for the innocent, especially the poor and the marginalized.

However, the libertarian pendulum swung too much to the opposite direction, resulting in the timidity of the police, lest they be held liable administratively and criminally. The net result is the rise in criminality. Grafters, killers, rapists and drug lords misuse the liberality of the Constitution to evade liability for their crimes and misdeeds.

And even when police officers strictly observe constitutional rights, some prosecutors and judges, out of sheer ignorance, apathy, laziness, or corruption, fail the justice system. So, too, witnesses are bribed, lose their memory, or otherwise disappear. Many lawyers thrive in technicalities and delays, rather than in their sworn duty to do justice to everyone.

Extralegal solutions. The consequence is a general revulsion against democratic methods, overlooking that means are as important as ends. Due process is equated with costly suits, tiring delays, inexplicable technicalities, long-winded trials, interminable appeals, unwelcome acquittals and plain injustice.

In frustration, people tend to take matters into their own hands and turn to extralegal and extrajudicial shortcuts.

To solve this revulsion to “overdue process,” the police, the prosecutors, the lawyers and the judges will have to cooperate, think outside the box, moderate the pendulum swing and craft innovative ways to provide quality and speedy justice for all. There must be a way to safeguard our precious constitutional rights without the “over” in due process.

Comments to chiefjusticepanganiban@hotmail.com

Last will executed by blind person valid

Dear PAO,
My aunt suffered a stroke last year. She was able to recover but the incident resulted in the loss of her eyesight. Just recently, she sought my assistance to type and print her last will because she says she wants to secure my future and my sister’s in case anything should happen to her. She has no children of her own and was never married but she was the one who took care of us because our parents passed away when I was ten years old. Will her will be considered valid despite her being blind? What other regulations should she consider? Any advice will be appreciated. Thank you and more power.
Athena

Dear Athena,
All persons may make a last will and testament, provided that they are not expressly prohibited by law, not under 18 years of age and must be of sound mind at the time of the execution of such will (Articles 796, 797 and 798, New Civil Code of the Philippines).

To be of sound mind, the law states that it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It is only necessary that he knows, at the time of making the will, the nature of the estate to be disposed of, the proper objects of their bounty and the character of their testamentary act (Article 799, Ibid.).

Accordingly, we find nothing amiss if your aunt executes her last will and testament as long as she possesses the foregoing qualifications. The fact that she has lost her eyesight because of the stroke that you said she suffered last year will not affect her legal capacity to execute her will.

Nevertheless, we wish to emphasize that your aunt’s typewritten and printed will should be subscribed by her at the end thereof or by her name written by some other person in her presence and with her express direction, and attested and subscribed by three (3) or more credible witnesses who appear before her and of one another. The will must also be signed by your aunt or the person she requested to write her name as well as the instrumental witnesses to her will on the left margin of each and every page thereof, except the last. The pages of her will must be numbered correlatively in letters placed on the upper part of each page. The attestation must state the number of pages used upon which her will is written, and the fact that she signed the will and every page thereof, or caused some other person to write her name, under her express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of your aunt and of one another. Should the attestation clause be written in a language not known to any of the witnesses, it shall be interpreted to them (Article 805, Id.).

Your aunt’s last will and testament must be acknowledged by her and her witnesses before a notary public (Article 806, Id.).In addition, her will must be read to her twice; once, by one of her subscribing witnesses, and again, by the notary public before whom she acknowledged the will (Article 808, Id.).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Helping a friend by being his judicial guardian

Dear PAO,
My family friend owns a successful food catering business. I was once his business partner, but I have already withdrawn my share and interests from the business to start my own family. I found out, however, that my friend had an accident that rendered him severely injured that caused serious brain damage to him. As a result of the injury, he now has the mental capacity of a five-year-old boy. His business is now in shambles, because of his inability to attend to his food catering and the constant in-fighting among his family members as to who will now manage his business and property. These have already resulted in serious losses to his business.

As a close friend and former business partner, I am sincerely concerned about this and I want to help his family on what to do legally in making sure his business is attended to and administered well. Because of this, can you please advise us on what we can do to legally protect him and his business and property by administering them, considering his current medical situation? Thank you for any advice.
Hector

Dear Hector,
Considering the personal condition of your friend at present and the necessity to legally secure his business interests, you may advise his family to consider the appointment of a judicial guardian who will formally guard over your handicapped friend and his property. A judicial guardian is a competent person appointed by the court over the person and/or property of either a minor or an incompetent ward to represent the latter in all of his civil acts and transactions (Florenz D. Regalado, Remedial Law Compendium Volume II, 10th Revised Edition, 2004).

Based on your narration, it appears that your family friend may qualify as an incompetent under the definition of the law on guardianship, which defines an incompetent as:

“Sec. 2. Meaning of word “incompetent.” – Under this rule, the word “incompetent” includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation” (Rule 92, Revised Rules of Court).

Since that present medical condition of your friend at present falls under the above-mentioned description as to who may be considered as incompetent, then you as a friend or any of his family members may file a petition before the court to be appointed as his guardian. If you do not wish to be your friend’s guardian, his other relatives may also apply for the appointment as guardian. The law provides as to who else may file a petition for guardian, to wit:

“Sec. 1. Who may petition for appointment of guardian for resident. – Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. xxx” (Rule 93, Ibid., emphasis supplied).

The appointed judicial guardian acts as the administrator and manager of the property and affairs of the ward. The general duties and responsibilities of a guardian are laid down under Rule 96 of the Revised Rules of Court that includes among others: payment of the ward’s debts, settling of his accounts, collecting debts, rendering an inventory of the ward’s estate, appearing in court in actions for the ward and other duties specified by the rule.

By having a judicial guardian appointed for your friend, his person and his property can be protected and administered properly to avoid further unnecessary losses to his property.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Indigents exempted from paying filing fees

Dear PAO,
I am writing for my mother whose date of birth was erroneously entered in their marriage contract. To correct the date, my mother has to file a Petition for Correction of Entry in the Office of the Local Civil Registrar. Is there a chance that my mother can be exempted from paying the fees for the filing of the petition?
Chloe

Dear Chloe,
The enactment of Republic Act (R.A.) No. 9048 simplified the process of correcting erroneous entries in the civil registry, which are regarded as typographical or clerical errors. Civil registrars and consul generals were authorized by the said law to correct these erroneous entries. This is according to Section 1 thereof, which was amended by R.A. No. 10172, which reads as follows:

“SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.”

Assuming that the error in your parents’ marriage contract is clerical or typographical error, indeed a petition before the Local Civil Registrar may be filed to correct the same. However, a fee shall be collected before the petition is acted upon by the said officer. To be exempt from the payment of the said fee, it must be proven that the petitioner is indigent. This is according to Section 8 of the said law as amended by R.A. Act No. 10172,which provides:

“SEC. 8. Payment of Fees. The city or municipal civil registrar or the consul general shall be authorized to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the payment of the said fee.

xxx”

In the same vein, an indigent petitioner refers to a destitute, needy and poor individual who is certified as such by the social welfare and development office of the city/municipal government. (2.7, Rule 2, Administrative Order No. 1, Series of 2001, Rules and Regulations Governing the Implementation of Republic Act No. 9048)

Based on the foregoing discussion, to be exempted from paying the required filing fee for the abovementioned petition, your mother has to prove that she is indigent. This can be done through a certification to be issued by the local social welfare and development office in your locality, certifying among other things that your mother is indigent.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Facebook wins dismissal of $15-B users’ privacy suit

Facebook Inc. won dismissal of a $15-billion lawsuit accusing the company of secretly tracking the Internet activity of its users after they log off.

US District Judge Edward J. Davila in San Jose, California, on Friday agreed with Facebook’s argument that case should be dismissed because subscribers didn’t specify how they were harmed. The judge, who took more than three years to issue his ruling after hearing arguments in the case, said the users could refile most of their claims in a revised lawsuit.

Facebook users alleged in a 2012 complaint that while they may have agreed to the company’s installation of “cookie” files on their computers to track and transmit their Web browsing, they didn’t consent to such monitoring after logging out of the social network. The lawsuit consolidated similar complaints filed on behalf of US residents who subscribed to Facebook from May 2010 to September 2011 in 10 states, including California, Texas and Alabama.

Facebook, the world’s most popular social-networking service, has been scrutinized by regulators in the US and Europe over how it uses subscribers’ private information. The company has also been hit with multiple privacy lawsuits, from a complaint that it scans users’ private e-mail messages for targeted advertising to a claim that its use of facial- recognition technology has “amassed the world’s largest privately held database of consumer biometric data.”

In the San Jose case, the plaintiffs accused Facebook of violating the US Wiretap Act by monitoring their online activity while they weren’t logged on. They also accused Facebook of improperly profiting from their information.

‘Realistic’ harm

The judge said the users failed to “adequately connect” the value of the data collected by Facebook “to a realistic economic harm or loss.” Specifically, the plaintiffs failed to show “they personally lost the opportunity to sell their information or that the value of their information was somehow diminished after it was collected by Facebook,” Davila said.

Davila gave the plaintiffs until November 30 to revise their claims, including invasion of privacy and alleged violations of the Wiretap Act. That law provides for damages of as much as $100 a violation per day for each Facebook user, according to the complaint. Based on an estimate of 150 million affected users, the plaintiffs calculated potential damages of $15 billion.

A representative of Menlo Park, California-based Facebook didn’t immediately respond to an e-mail after regular business hours on  Friday seeking comment on the ruling. Three lawyers for the plaintiffs also didn’t respond to phone and e-mail messages.

Matthew Brown, a lawyer who represented Facebook at a 2012 hearing before Davila, told the judge that the users’ complaint suffers from an “utter lack of allegations of any injury to these particular named plaintiffs.”

Brown argued that the plaintiffs failed to identify what web sites they visited, what kind of data or information was collected or whether Facebook used it or disclosed it to anyone else.

source:  Business Mirror

Deceptive sales practice violates consumer law

Dear PAO,

When I was walking in a certain mall in Taguig City (Metro Manila), I chanced upon two individuals who introduced themselves as sales clerks from a particular company. They told me that I won some of their products. These agents brought me to their booth where they kept on congratulating me and also showing the products that I had won. They wrapped these products so that I could bring them home, but when I was about to take these prizes, one of the agents told me that I must first buy one of their products, which was too expensive. I found it impractical, so I told the agent that I was no longer interested in the prizes. Is this type of marketing strategy legal?
Melanio

Dear Melanio,
What you have narrated is a clear case of deceptive sales act or practice. You can file your complaint with the Department of Trade and Industry (DTI). This is in violation of Article 50 of Republic Act (RA) 7394, or the Consumer Act of the Philippines. The provision states, “A deceptive act or practice by a seller or supplier in connection with a consumer transaction violates this Act whether it occurs before, during or after the transaction. An act or practice shall be deemed deceptive whenever the producer, manufacturer, supplier or seller, through concealment, false representation of fraudulent manipulation, induces a consumer to enter into a sales or lease transaction of any consumer product or service. Without limiting the scope of the above paragraph, the act or practice of a seller or supplier is deceptive when it represents that:

a) a consumer product or service has the sponsorship, approval, performance, characteristics, ingredients, accessories, uses or benefits it does not have;

b) a consumer product or service is of a particular standard, quality, grade, style or model when in fact it is not;

c) a consumer product is new, original or unused, when in fact, it is in a deteriorated, altered, reconditioned, reclaimed or second-hand state;

d) a consumer product or service is available to the consumer for a reason that is different from the fact;

e) a consumer product or service has been supplied in accordance with the previous representation when in fact it is not;

f) a consumer product or service can be supplied in a quantity greater than the supplier intends;

g) a service, or repair of a consumer product is needed when in fact it is not;

h) a specific price advantage of a consumer product exists when in fact it is not;

i) the sales act or practice involves or does not involve a warranty, a disclaimer of warranties, particular warranty terms or other rights, remedies or obligations if the indication is false; and

j)    the seller or supplier has a sponsorship, approval, or affiliation he does not have.”

Another provision of the law that was also violated was Article 52, which provides that “an unfair or unconscionable sales act or practice by a seller or supplier in connection with a consumer transaction violates this chapter whether it occurs before, during or after the consumer transaction. An act or practice shall be deemed unfair or unconscionable whenever the producer, manufacturer, distributor, supplier or seller, by taking advantage of the consumer’s physical or mental infirmity, ignorance, illiteracy, lack of time or the general conditions of the environment or surroundings, induces the consumer to enter into a sales or lease transaction grossly inimical to the interests of the consumer or gross one-sided in favor of the producer, manufacturer, distributor, supplier or seller.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Adopted child, adoptive parents can inherit from each other

Dear PAO,
My friend was legally adopted by a wealthy man. The man died five years ago leaving all his properties to my friend. I am just wondering if the biological parents of my friend can inherit from him.
JM

Dear JM,
Adoption is the legal process by which a legitimate relationship is created between the adoptive parents and the adoptee to the effect that the adoptive parents are considered the legitimate parents of the adopted children. This is according to Republic Act (R.A.) No. 8552 or the Domestic Adoption Act of 1998, which provides:

“Section 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.”

In the same vein, all legal ties between the biological parents and the adopted children are severed and vested in the adopters, unless one of the biological parents is the spouse of the adopter (Section 16, R.A. No. 8552).

Insofar as succession is concerned, the adoptive parents and the adopted child shall exclusively inherit from each other, as explicitly provided by Section 18 of the above-mentioned law, to wit:

“Section 18. Succession. — In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.”

It is clear therefore that the biological parents of an adopted child cannot inherit from the latter and vice-versa except through a will, which must comply with the law on testamentary succession.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net