Wednesday, November 17, 2010
Sunday, November 07, 2010
Villa Dupont Rue de Pergolese
Nabaril ni Juan Luna ang kanyang bayaw, Felix Pardo de Tavera, biyenan, Juliana Gorricho, at asawa, Paz Pardo de Tavera Luna sa bahay nila sa Paris. Gamit ni Luna ang isang baril na kanyang binili higit sa isang linggo pa lang ang nakakaraan bago nangyari ang insidente. Buhay ang bayaw niya. Namatay agad ang kanyang biyenan, sugatan naman nang malubha ang kanyang asawa, subalit namatay din siya lumipas ang ilang araw.Isinakdal si Juan Luna sa naturang krimen. At nagsimula ang isang paglilitis na matuturing na napakahalaga, hindi lamang sa France, pero pati na rin sa Pilipinas.
Mga Kaganapan sa Paglilitis:
Binasahan ng sakdal si Juan Luna ng Clerk of the High Court nung paglilitis na naganap ng 7 Pebrero 1893.Tinanong ng huwes si Juan Luna sa mga pangyayari, at inamin ni Luna na nagpaputok siya ng baril, subalit sinabi rin niya nawala siya sa sarili, at matapos ang unang putok na tumama sa kanyang bayaw, ay hindi na niya maalala ang mga pangyayari.
Sa ganitong sagot, nagtaka ang huwes at sinabing kung nawala ka sa saril, bakit nakapagsalita ka pa sa tabi ng bangkay ng iyong biyenan, at nawika mo pa na napakabait ng iyong biyenan.Ang sagot ni Luna ay, "yun ay dahil sa sakit na labis na pagkawasak. Totoong napakabait niya, lalo na sa aking anak..."Tinanong siya uli ng huwes kung pinagsisihan niya ang pangyayari, at sumagot si Luna na lubha niyang pinagsisihan. Dati siyang maligaya, honorable, at mahal niya ang kanyang asawa. Ngayon ay hindi na niya alam kung gaano ka miserable ang kanyang buhay. Pagkatapos ay napasubsob si Luna sa kanyang upuan, lubhang luhaan.
Sinuspinde ang paglilitis ng panandalian.May walong tao pa ang tumestigo, kasama si Trinidad Pardo de Tavera, kapatid ni Paz, at si Antonio Luna, kapatid ni Juan.
Sa kanyang testimonya, winika ni Trinidad na lubhang nanibugho si Juan sa kanyang asawa dahil pinagsususpetsahan niya na ito'y may relasyon sa isang pranses na nagngangalang, Dussaq. Naging biyolente si Juan at binubugbog sa Paz hanggang sinabi ni Paz na gusto na niyang idoborsyo si Juan.May isang insidente kung saan sinundan ni Juan si Paz isang hapon sa lugar na Mont Thabor. Pumasok si Paz sa isang bahay, sumunod si Juan subalit hindi niya nakita si Paz at sa halip ay nakita niya si Dussaq.
Ang insidenteng ito ay pinatunayan ni Charlotte, isang conciege, na tumestigo rin. Sabi ni Pardo te Tavera, hindi naman inamin sa kanya ng kanyang kapatid ang pangyayaring ito. Pagkatapos sinabi sa kanya ni Luna na tinutukan niya ng baril si Paz at ito'y umamin sa kanya at pumirma ng pag-amin at kasulatang ipauubaya niya na ang anak na si Andres kay Luna. Subalit nagbago ng isip si Luna at nagsabing dadalhin na lang niya ang kanyang mag-ina sa Vigo, Espana upang malayo kay Dussaq.
Sa desisyong ito, hindi pumayag si Juliana dahil sa pangamba na lubusang bugbugin at mapatay ni Luna ang kanyang anak. Pinatawag niya ang kanilang abogado na si Antonio Regidor. Nang dumating si Regidor ay siyang araw din kung kailan dapat umalis sila Luna at nangyari na nga ang patayan. Nang umupo si Antonio Luna bilang testigo, inamin niya na minsa'y sinagip niya ang kanyang hipag sa kamay ng kapatid niyang si Juan na sinasaktan ang asawa dahil sa isang bayarin.
Ang pagsasara ng diskusyon ayon sa mga abogado:
Unang nagsalita sa harap ng hurado and abogado ng magkapaid na Pardo de Tavera na si Felix Decori:
Nilagom ni Decori and mga pangyayari at hinihingi sa hurado na parusahan si Luna. Sinabi niya na hindi dapat makalimutan ang paglilitis ay tungkol sa pagkamatay ng mag-inang Pardo de Tavera at hindi ang paratang ni Luna tungkol kay Paz at sa kanyang mga kaanak.
Binasa ni Decor ang isang liham ni Juliana, ina ni Paz, kay Trinidad kung saan inulit niya ang pamgbubugbog na inabot ng anak sa kamay ni Luna, at ang ang insidente kung saan sapilitang pinapirma ni Juan si Paz ng pag-amin ng kanyang relasyon kay Dussaq.
Sa isang punto, sinabi ni Decori na si Luna ay nabibilang sa lahi ng mga Malay, na kilala sa pagiging tahimik, tamad, walang pakialam subalit biglang nagiging biyolente. "Malay Madness", sabi niya, ang tawag sa kundisyung ito ng mga Malay na pumapatay sa tindi ng galit, katulad ng mga nakahithit ng opyo, hindi nila alam ang kanilang ginagawa, at si Luna ay sadyang ganiyan.
Nagsalita naman ang abugado ng prosecution na si M. Bonn, at sinabi niya ang "Malay Madness' na ito ay hindi kabilang sa mga pagkasira ng ulo na inaabswelto sa batas ng Pranses, kaya hiniling niya na si Luna's parusahan ng hurado.
Ang huling nagsalita ay si Albert Danet, ang abogado ni Luna.
Pinakita ni Danet kung gaano katapat at kagaling sa Luna sa pamamagitan ng mga liham ng mga leader sa Espana at mga sikat na tao sa larangan ng sining at politika na sumulat upang suportahan siya.
Pagkatapos, winika ni Danet and mga liham ni Luna kay Paz kung saaa makikita kung gaano kamahal ni Luna ang kanyang asawa.
Winika niya rin ang pag-aaral ng isang Dr. Felizet na si Juan ay isang indio, kaya dapat siya ay husgahan din ng parang sa indio. Sabi ni Danet si Juan ay hindi katulad ng mga Pranses, iba ang mga bagay na nagpapatakbo ng kanyang mga pulso, kaya hindi siya dapat na husgahan ng parang isang ordinaryong Pranses. Siya ay dapat husgahan na ayon sa kanyang pagkatao.
Sa puntong ito, tinawag ng huwes si Luna at tinanong kung meron siyang gustong sabihin
Tumayo si Luna at humingi ng tawad Sinabi niya sa mga hurado na sana'y hayaan siyang lumaya upang maalagaan niya ang kanyang pangalan na malinis at maisalin niyang mabuti sa kanyang anak.
Sa aspetong sibil, pinagbayad si Luna ng halagang isang franc sa magkapatid na Pardo de Tavera bilang danyos perwisyos at ang halaga ng gastos sa kaso.
Sa aspetong kriminal, nagpasya ang hurado na si Luna ay walang kasalanan at siya ay pinalaya.
(Halaw sa Rage! ni Alejandro Roces na inilathala ng La Solidaridad Publishing nung 2008)
Wednesday, July 21, 2010
Unreported in the news: Was the death of a runner in the Milo Marathon due to the organizers' negligence?
X. X. X. X. X. X
REMUS FUENTES died of multiple organ failures as result of heatstroke secondary to severe dehydration two days after he ran the 21K in the recent 34th Milo Marathon last Sunday, July 4, 2010.
His death was the result of fatal mistakes, incompetence and negligence in the event organized by Organizing Team.
My son, 37-year-old Remus ran the 21K together with a running buddy when he collapsed at 19.9 kilometer mark. There was none of organizer’s ambulance nor marshalls to respond in the incident. Policemen hailed for a taxi and they, together with his buddy, assisted in bringing him to the nearest hospital, Ospital ng Maynila. At the ER, the diagnose was suspected heart attack. My wife and me, upon being informed by his younger brother, Roy Fuentes, who also ran the 21K, rushed to the hospital and saw that Remus in coma, had seizures and struggled breathing in spite of hand-pumped oxygen and dextrose attached. His body temperature was 40 degrees C and when asked, the medical attendant told us he had fever. She introduced paracetamol intravenously twice at interval of about 15 minutes. Remus continued having seizures even until the arrival of Medical City doctor & ambulance attendants that we have arranged for his transfer. The Medical City doctor attending said his status was unstable, contrary to the earlier advice to her by the Ospital ng Maynila ER doctor. They rushed him with the ambulance to Medical City at about 11:30 AM. There, a series of tests were done, including blood chemistry, CT scan, etc. Cardiologist told us his heart was strong and no intervening medicine was necessary. Blood Chemistry results showed positive findings on creatinin level, an indication of kidney failure. They suspected liver failure too. To stop his seizures, Remus was put on full sedation for 12 hours. Kidney functions further deteriorated after 36 hours. Blood pressure and heart rate went erratic. Doctors attending him in the ICU asked our permission to do dialysis and blood transfusion to stabilize his blood pressure. Seven hours later, ICU nurse wake us up and asked us to rush to the ICU. We saw 18 medical people around him, several taking turn doing the CPR. Failing to revive him, the doctor asked our consent to stop the CPR after 15 minutes. We begged them to continue hoping for miracle. 30 minutes further, doctor told us again that all numbers in the monitoring “were bad” and asked again the consent to stop the CPR. Finally, we relented. Few minutes later, his heart rate monitor went flat. All these happened in front of my wife and me. We lost Remus 48 hours after he collapsed into coma which he has never recovered. His young wife and his eight-year old son took the news very badly.
It usually happen in extreme sports like basketball, football, boxing and marathon.
Heat stroke is a life-threatening medical condition. The person's cooling system, which is controlled by the brain http://www.emedicinehealth.com/script/main/art.asp?articlekey=2516, stops working and the internal body temperature rises to the point where brain damage or damage to other internal organs may result. The body temperature, usually at normal 37 C, goes up during the exertion of effort as result of the increased heart rate. When it reaches 40 C, the person is in danger of getting heatstroke. Above 40 C and mostly at about 42 C, the person can collapse into unconsciousness. If nothing is done within few minutes, he can slip into coma and brain damage may occur. The proven first aid response for heatstroke is cooling the body rapidly in whatever means to the level of below 40 C before bringing him to a hospital. Ice and water is the best way to do this, the same way it is done for a child having high fever who has convulsion.
Another way of understanding heatstroke is comparing it to the performance of car engine. At idling, the engine temp is low and safe. At sustained high speed, engine temperature increases rapidly but because of the cooling system, the heat is continuously dissipated in the radiator and safe temperature level is maintained. But when the water in the radiator is gone, Undissipated heat will rack up the engine temperature and ultimately exceeds the safe limits. At this condition, engine breakdown will occur in minutes starting with broken piston rings, rods, pistons, etc.
With the human body, perspiration cools down the body so hydration by drinking water is essential. Without water, perspiration stops and body temperature goes to critical level and into heatstroke and then organs and brain begin to fail.
Big obvious difference between human body and car engine is that you can always overhaul the engine but you cannot do that on the human body.
Why Heatstroke is More Dangerous in Marathon than in other Extreme Sports?
In basketball, the player exerts extreme effort only in bursts, stopping or slowing down intermittently which slows down heart rate and cools down the body. At timeout, they drink to replenish lost body water hence you always have the waterboy. Heart stroke is rare but ask any PBA player what they do when a player collapse. They don’t move the body but cool them off with water or ice before bringing him to the hospital.
The same is true in football and in many similar sports.
In boxing, in between rounds of three minutes, boxer rests and drinks water. We can only wonder what will happen if the rule of the sport is drastically changed and will only end when one is down and out.
In Marathon, the risk of heatstroke is much higher for the following reasons:
The long distance runner aims for shorter time as a goal and therefore motivated to keep a sustained effort, not unlike cars at high speed in the highway.
Furthermore, the target minimum time set by the organizer adds more to the motivation to run faster. The cut-off time added more pressure to the marginal marathon runner, meaning if you are used to run above the target time, the tendency is to do better time, probably at pace unproven by your body in practice. (Milo Marathon set the target for 21K medal at 2 ½ hours or less. Remus collapsed at near 20th km. with time of 2 hours 10 minutes when his previous record was 2 hours and 27 minutes. ).
The more critical factor is that the hydration management is not in the control of the runner. He has to rely on water availability at the water stations provided and planned by the organizer along the route. ( In this 34th Milo Marathon, several runners including Remus brother, Roy and Remus running buddy asserted that practically there was no water to drink in the last 2~3 kilometers before the finish line, a fatal failure for Remus by the organizer when they changed the route resulting in over-traffic near the finish line. There were record 28,000 runners on that day and the organizers failed to anticipate the complexity of hydration. Milo’s last year marathon participant was well below 10,000 runners.)
The correct life-saving response for heatstroke depends on few knowledgable people who may happen to be around the person. To mitigate this, the organizer deploys ambulances with water & ice for cooling heatstroke victims and is expected to respond within minutes. In addition, marshalls are provided along the route to assess runner situations continuously. (Obviously, the organizer failed again on this aspect because Remus was helped by policemen and his buddy instead. By this time, Remus is probably already brain damaged as evident by his seizure at the hospital. No Milo people knew of Remus case on that day until Roy, his brother, sent an email informing the organizer of the incident in the next morning)
The Sun Factor adds to the danger in Marathon. Running under the heat of the sun in tropical country like ours cannot be underestimated. To minimize the effect of the sunheat, Marathon run is planned to finish in the early morning avoiding the heat at later time. Organizers usually take this into consideration. (Milo organized the 21K to start at 5:30 AM , a departure of common practice of other marathons which started at 5:00 AM. Remus collapsed at about 7:57 AM. Roy who is a better runner than his brother Remus, complained that it was unusually hot that morning even if he was able to finish it earlier in 2 hours 45 minutes )
Clearly, Marathon is an extreme and dangerous sport even to the young, healthy and trained runners. This is not the “fun run” many people confused of.
The organizer has clear life-and-death responsibility to make sure that the conditions the runner will run under item 3, 4 and 5 above are done properly. Obviously they did not do their job properly in the 34th Milo Marathon. In my opinion, being the father of Remus, Milo Marathon Organizer have failed my son. It is their incompetence and negligence in their duty that results in the death of Remus …an unneccesary death.
At the time of his death, he was an IT project manager of Hewlett-Packard (HP) responsible in computerizing big companies like Unilab, Coke, etc. including installation of hardwares (servers, etc.) and software system. He used to worked for Intel for 10 years before he moved to HP 3 years ago. He graduated in Computer Engineering. He left a housewife, Takako and two children, Raphael, 8 years old and Therese, 4 years old. Raphael is enrolled at La Salle Greenhills. He played basketball with his brothers regularly on weekends. He has been running since his high school days in Lourdes School of Mandaluyong. He has run many 10Ks and two 21Ks before these, the “Freedom Run” in June 13 and “Nature Valley” in May 20 only this year. He has no history nor complaint of illness and he lived clean.
My Questions for the Marathon Organizer:
How many died in the 34th Milo Marathon last July 4? Is it true that there was another runner at 42K who collapsed at 33 km and later died?
How many runner collapsed in that marathon due to heatstroke who later survived but now are no longer the same person as before due to partial brain injury? At Ospital ng Maynila, we saw a 2nd runner brought in unconscious and woke up later but he can no longer recognize his family. Do the Organizers knew this? What happened to him. Are their more?
Is it true that another 36 year-old runner, Fidel Camson, who ran the 42K 31st Milo Marathon in November 2007 collapsed near the finish line, brought to the Ospital ng Maynila and died later of undetermined cause? If true, what did they do avoid a repeat which apparently did not happen in this 34th Milo Marathon? If true, why do they still keep the Marathon organizer for 10 years until now?
Do they keep tally of deaths in the 34 years of Milo Marathon? Do they study the statistics and establish how many died of heatstroke, the preventable one?
What is the corporate culture of the Organizers regarding its respect of the value of life? Upon knowing the death of my son Remus, A Senior Vice President of one of the organizing team, who head its Beverages Business Unit went to see me and among other things, he told me that the Marathon is continuously improved and but sometimes “lapses occur and they will learn from these lapses”. Lapse is defined as a ‘mistake’. People learn from ‘error’, a deviation from being correct but a ‘mistake’ is caused by a fault: the fault could be misjudgment or carelessness. We learn from ‘error’ but we take action on ‘mistake’ and more drastic action when people die of this ‘mistake’. So death in my son’s case is a mere learning process for this person? Is this the culture that pervades in their Organization? or only in him?
Is the measly “humanitarian” offer to help the family shoulder medical & funeral expense to the family had become an SOP too often? Was it their expectation that as appreciation of this help, the family will keep quiet about the whole thing? Do they really think that the waiver signed by the runners protect them from being liable? Do they know that this waiver won’t apply if negligence of their duty as organizer can be established?
What did the Organizers do, if any, to keep the news of Remus death from appearing in the media even after one week? Not one news item of his death appeared in the newspaper, TV or radio. Could the news of “ HP Manager Died of HeatStroke during the Milo Marathon” not interest the public? Were they afraid that the bigger news is when the subline “Father charged Milo Marathon Organizer of Incompetence and Negligence” which may damage the public image of the company?
The answers to these questions will help enlightened the public whether Milo Marathon is safe or not for the runner. To the runners, their parents, wives and relatives…they all better asked these questions before the runners decide to run in Milo Marathon.
Last Words from Remus Father:
I am not condemning the sport but the organizer who failed to make sure runners will not die of heatstroke, when the risks can be grossly minimized with proper route planning, hydration management and quick medical response. I am condemning the contribution of the apparent culture of the sponsor of diminished value of human life as indicative of its senior executive’s attitude that my son’s death is a result of lapses. My hope is something good will come out of his death and as result of improved organizing of the marathon run, few lives will be saved from heatstroke. My other hope is to get justice and for the Organizing Team to answer for his untimely death. I am working on it.
Rudy Fuentes, Father of Remus
Monday, May 10, 2010
Thursday, May 06, 2010
Tuesday, February 23, 2010
Sunday, February 21, 2010
May a government employee, dismissed from the service for cause, be allowed to recover the personal contributions he paid to the Government Service Insurance System (GSIS)?
This is the question that confronts this Court in the instant case, the factual antecedents of which are as follows:
On December 21, 1998, this Court promulgated a Decision dismissing from the service Atty. Cesar V. Lledo, former branch clerk of court of the Regional Trial Court of Quezon City, Branch 94. Cesar’s wife, Carmelita, had filed an administrative case against him, charging the latter with immorality, abandonment, and conduct unbecoming a public official.
During the investigation, it was established that Cesar had left his family to live with another woman with whom he also begot children. He failed to provide support for his family. The investigating judge recommended Cesar’s dismissal from the service. The Office of the Court Administrator (OCA) adopted the recommendation.
The Court, in its December 21, 1998 Decision, disposed of the case in this wise:
WHEREFORE, Cesar V. Lledo, branch clerk of court of RTC, Branch 94,
, is hereby DISMISSED from the service, with forfeiture of all retirement benefits and leave credits and with prejudice to reemployment in any branch or instrumentality of the government, including any government-owned or controlled corporation. This case is REFERRED to the IBP Board of Governors pursuant to Section 1 of Rule 139-B of the Rules of Court. Quezon City
In a letter dated January 15, 1999, Carmelita and her children wrote to then Chief Justice Hilario G. Davide, Jr., begging for humane consideration and asking that part of the money due Cesar be applied to the payment of the arrearages of their amortized house and lot then facing foreclosure by the GSIS. They averred that Cesar’s abandonment had been painful enough; and to lose their home of 26 years would be even more painful and traumatic for the children.
The Court directed the OCA to comment. The OCA recommended that the Court’s December 21, 1998 Decision be reconsidered insofar as the forfeiture of Cesar’s leave credits was concerned, underscoring, however, that said benefits would only be released to Carmelita and her children.
In a Resolution dated August 3, 1999, the Court resolved to deny the motion for reconsideration for lack of merit.
On April 3, 2006, Cesar L. Lledo, Jr., Cesar’s son, wrote a letter to then Chief Justice Artemio V. Panganiban. He related that his father had been bedridden after suffering a severe stroke and acute renal failure. He had been abandoned by his mistress and had been under Cesar Jr.’s care since 2001. The latter appealed to the Court to reconsider its December 21, 1998 Decision, specifically the forfeiture of leave credits, which money would be used to pay for his father’s medical expenses. Cesar Jr. asked the Court for retroactive application of the Court’s ruling subsequent to his father’s dismissal, wherein the Court ruled that despite being dismissed from the service, government employees are entitled to the monetary equivalent of their leave credits since these were earned prior to dismissal.
Treating the letter as a motion for reconsideration, the Court, on May 3, 2006, granted the same, specifically on the forfeiture of accrued leave credits.
Cesar Jr. wrote the Court again on November 27, 2006, expressing his gratitude for the Court’s consideration of his request for his father’s leave credits. He again asked for judicial clemency in connection with his father’s claim for refund of the latter’s personal contributions to GSIS.
The Court directed the GSIS to comment, within 10 days from notice, on Cesar Jr.’s letter....
In a letter dated April 16, 2009, Jason C. Teng, Regional Manager of the GSIS Quezon City Regional Office, explained that a request for a refund of retirement premiums is disallowed. He explained:
The rate of contribution for both government and personal shares of retirement premiums was actuarially computed to allow the GSIS to generate enough investment returns to be able to pay off future claims. During actuarial computation, the expected demographics considered the percentages of different types of future claims (and non-claims). As such, if those that were expected to have no future claim (e.g. those with forfeited retirement benefits) were suddenly allowed to receive claims for payment of benefits, this would have a negative impact on the financial viability of the GSIS.
Even as the Court noted the letter in its June 30, 2009 Resolution, it further required the Board of Directors of the GSIS (GSIS Board) to file a separate Comment within 10 days from notice.
In its Comment, the GSIS Board said that Cesar is not entitled to the refund of his personal contributions of the retirement premiums because “it is the policy of the GSIS that an employee/member who had been dismissed from the service with forfeiture of retirement benefits cannot recover the retirement premiums he has paid unless the dismissal provides otherwise.” The GSIS Board pointed out that the Court’s Decision did not provide that Cesar is entitled to a refund of his retirement premiums.
There is no gainsaying that dismissal from the service carries with it the forfeiture of retirement benefits. Under the Uniform Rules in Administrative Cases in the Civil Service, it is provided that:
Section 58. Administrative Disabilities Inherent in Certain Penalties.
a. The penalty of dismissal shall carry with it that of cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision.
However, in the instant case, Cesar Jr. seeks only the return of his father’s personal contributions to the GSIS. He is not claiming any of the benefits that Cesar would have been entitled to had he not been dismissed from the service, such as retirement benefits."
"It should be remembered that the GSIS laws are in the nature of social legislation, to be liberally construed in favor of the government employees.The money subject of the instant request consists of personal contributions made by the employee, premiums paid in anticipation of benefits expected upon retirement. The occurrence of a contingency, i.e., his dismissal from the service prior to reaching retirement age, should not deprive him of the money that belongs to him from the outset. To allow forfeiture of these personal contributions in favor of the GSIS would condone undue enrichment."
Saturday, February 20, 2010
In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy. Otherwise, the contract is denied legal existence, deemed “inexistent and void from the beginning.”For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the Agreement’s joint child custody stipulations.
At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Stephanie was under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer married under the laws of the United States because of the divorce decree. The relevant Philippine law on child custody for spouses separated in fact or in law(under the second paragraph of Article 213 of the Family Code) is also undisputed: “no child under seven years of age shall be separated from the mother x x x.”(This statutory awarding of sole parental custody to the mother is mandatory, grounded on sound policy consideration,subject only to a narrow exception not alleged to obtain here.) Clearly then, the Agreement’s object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law.
The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the mother when she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together. However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who isunemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213.
It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial agreements based on its text that “No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” To limit this provision’s enforceability to court sanctioned agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation of children under seven years old of separated parents. This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her children under seven years of age “to avoid a tragedy where a mother has seen her baby torn away from her.”This ignores the legislative basis that “[n]o man can sound the deep sorrows of a mother who is deprived of her child of tender age.”
It could very well be that Article 213’s bias favoring one separated parent (mother) over the other (father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or hijacks decision-making between the separated parents. However, these are objections which question the law’s wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the legislature, not this Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements.
Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that petitioner and respondent are not barred from entering into the Agreement for the joint custody of Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie. Respondent’s act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on respondent sole custody of Stephanie.
Nor can petitioner rely on the divorce decree’s alleged invalidity - not because the Illinois court lacked jurisdiction or that the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse - to support the Agreement’s enforceability. The argument that foreigners in this jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad. There, we dismissed the alien divorcee’s Philippine suit for accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this jurisdiction in this wise:
There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage.
x x x x
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. (Emphasis supplied)
We reiterated Van Dorn in Pilapil v. Ibay-Somera to dismiss criminal complaints for adultery filed by the alien divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because he no longer qualified as “offended spouse” entitled to file the complaints under Philippine procedural rules. Thus, it should be clear by now that a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it does in the jurisdiction of the alien’s nationality, irrespective of who obtained the divorce."
Nonetheless, as Stephanie is by now about 15 years old, the Court remands the case for further proceedings to the RTC in order to determine the best interest of the child insofar as parental custody is concerned."in the matter of child custody, the mutual will of the child’s parents takes precedence in the absence of circumstances that justify recourse to the law."
Wednesday, February 17, 2010
In legal ethics, the Court disbars two lawyers for immorality.
In remedial law, the Court skews technicality but rules that the issue of the right of possession in an ejectment case is moot and academic as the party being sued for recovery of possession has lost possession of the property. It also rules that certiorari is not the proper remedy in case a case is dismissed for failure to prosecute. The remedy is appeal.
In transportation law, the Court rules that limitation on liability of the bill of lading does not apply if the value of the cargo shipment is communicated to the arrastre operator before the discharge of the cargoes.
In civil law, the Court denies another petition for annulment of marriage based on the ground of psychological incapacity. The Court says,
"It was folly for the trial court to accept the findings and conclusions of Dr. Villegas with nary a link drawn between the “psychodynamics of the case” and the factors characterizing the psychological incapacity."Really, an appeal by the Republic of the Philippines in a case granting annulment will almost always result in a reversal by the Supreme Court.
In property law, the Court distinguishes between legal possession and actual possession, and declares,
Petitioners’ argument is misplaced, considering that this is a forcible entry case. They are apparently referring to “possession” flowing from ownership of the property, as opposed to actual possession. In ejectment cases, possession means nothing more than actual physical possession, not legal possession in the sense contemplated in civil law.
In taxation, the Court grants PAL a tax refund in the amount of of PHp 134,431.95 representing the 10% [Overseas Communications Tax] OCT PAL paid on its overseas telephone calls.
Prior physical possession is the primary consideration in a forcible entry case. A party who can prove prior possession can recover such possession even against the owner himself. Whatever may be the character of his possession, if he has in his favor prior possession in time, he has the security that entitles him to remain on the property until a person with a better right lawfully ejects him. The party in peaceable quiet possession shall not be thrown out by a strong hand, violence or terror.
And in criminal law, the Court affirms the convictions of two persons accused of murder, convicts several men for the special complex crime of kidnapping and serious illegal detention with rape, and convicts a drug dealer.